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					USCA Case #11-1355        Document #1381604          Filed: 07/02/2012     Page 1 of 116


              ORAL ARGUMENT NOT YET SCHEDULED
                             No. 11-1355
       _______________________________________________________

            IN THE UNITED STATES COURT OF APPEALS
             FOR THE DISTRICT OF COLUMBIA CIRCUIT
        _____________________________________________________

                                      VERIZON,

                                      Appellant,

                                           v.

               FEDERAL COMMUNICATIONS COMMISSION,

                                       Appellee.

       _______________________________________________________

                ON APPEAL FROM AN ORDER OF THE
              FEDERAL COMMUNICATIONS COMMISSION


              JOINT BRIEF FOR VERIZON AND METROPCS

  Walter E. Dellinger                              Helgi C. Walker*
  Brianne Gorod                                    Eve Klindera Reed
  Anton Metlitsky                                  William S. Consovoy
  O’MELVENY & MYERS LLP                            Brett A. Shumate
  1625 Eye Street, NW                              WILEY REIN LLP
  Washington, DC 20006                             1776 K Street, NW
  TEL: (202) 383-5300                              Washington, DC 20006
                                                   TEL: (202) 719-7000
                                                   E-MAIL: hwalker@wileyrein.com

                                                   Attorneys for Verizon

   Dated: July 2, 2012                             *Counsel of Record

                         Additional counsel listed on next page
USCA Case #11-1355   Document #1381604      Filed: 07/02/2012    Page 2 of 116




  Michael E. Glover                      Samir C. Jain
  William H. Johnson                     WILMER CUTLER PICKERING
  VERIZON                                HALE AND DORR LLP
  1320 North Courthouse Road             1875 Pennsylvania Ave., NW
  9th Floor                              Washington, DC 20006
  Arlington, VA 22201                    TEL: (202) 663-6083
  TEL: (703) 351-3060
                                         Attorneys for Verizon



  Stephen B. Kinnaird*                   Carl W. Northrop
  PAUL, HASTINGS, JANOFSKY               Michael Lazarus
  & WALKER LLP                           Andrew Morentz
  875 15th Street, NW                    TELECOMMUNICATIONS LAW
  Washington, DC 20005                   PROFESSIONALS PLLC
  TEL: (202) 551-1842                    875 15th Street, NW, Suite 750
                                         Washington, DC 20005
                                         TEL: (202) 789-3120
  Mark A. Stachiw
  General Counsel, Secretary
  & Vice Chairman
  METROPCS COMMUNICATIONS, INC.
  2250 Lakeside Blvd.
  Richardson, TX 75082                   Attorneys for MetroPCS
  TEL: (214) 570-4877                    Communications, Inc. and its
                                         FCC-licensed affiliates

                                         *Counsel of Record
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   CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
      The undersigned attorneys of record, in accordance with D.C. Cir. R.

28(a)(1), hereby certify as follows:

      A.      Parties and Amici

      The principal parties in these consolidated cases are Appellant-Petitioner

Verizon, Appellants-Petitioners MetroPCS Communications, Inc. and its FCC-

licensed affiliates (MetroPCS 700 MHz, LLC; MetroPCS AWS, LLC; MetroPCS

California, LLC; MetroPCS Florida, LLC; MetroPCS Georgia, LLC; MetroPCS

Massachusetts, LLC; MetroPCS Michigan, Inc.; MetroPCS Networks California,

LLC; MetroPCS Networks Florida LLC; MetroPCS Texas, LLC; and MetroPCS

Wireless, Inc.) (collectively “MetroPCS”), Petitioner Free Press, Appellee-

Respondent Federal Communications Commission, and Respondent United States

of America.

      ITTA – The Independent Telephone and Telecommunications Alliance has

appeared as intervenor in support of Appellants-Petitioners. National Association

of Regulatory Utility Commissioners, National Association of State Utility

Consumer Advocates, Public Knowledge, Vonage Holdings Corporation, the Open

Internet Coalition, and CTIA – The Wireless Association® have appeared as

intervenors in support of Appellee-Respondents.




                                         i
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      The Commonwealth of Virginia has appeared as amicus curiae in support of

Appellants-Petitioners.

      As set forth in the appendix to the ruling on review, the persons who

appeared before the agency in the proceedings below are:

      100 Black Men of America et al.
      2Wire, Inc.
      4G Americas, LLC
      4Info, Inc.
      ACT 1 Group et al.
      Adam Candeub and Daniel John McCartney
      ADTRAN, Inc.
      Adventia Innovative Systems
      African American Chamber of Commerce - Milwaukee
      African Methodist Episcopal Church
      Aircell LLC
      Akamai Technologies, Inc.
      Alabama State Conference of the NAACP
      Alarm Industry Communications Committee
      Alcatel-Lucent
      Allbritton Communications Company
      Alliance for Digital Equality
      Alliance for Telecommunications Industry Solutions
      Amazon.com
      American Arab Chamber of Commerce
      American Association of Independent Music
      American Association of People with Disabilities
      American Business Media
      American Cable Association
      American Center for Law and Justice
      American Civil Rights Union
      American Consumer Institute CCR
      American Council of the Blind
      American Federation of Television & Radio Artists, Directors Guild of
         America, International Alliance of Theatrical Stage Employees, Screen
         Actors Guild
      American Homeowners Grassroots Alliance

                                        ii
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      American Indian Chamber of Commerce of Wisconsin
      American Legislative Exchange Council
      American Library Association, Association of Research Libraries,
         EDUCAUSE
      Americans for Prosperity
      Americans for Tax Reform and Media Freedom Project
      Americans for Tax Reform Digital Liberty Project
      Americans for Technology Leadership
      Annie McGrady
      Anti-Defamation League
      AOL Inc.
      Arts+Labs
      Asian American Justice Center
      Assemblywoman Debbie Smith
      Association for Competitive Technology
      Association of Research Libraries
      Association of Research Libraries, EDUCAUSE, Internet2, NYSERNet, and
         ACUTA
      AT&T Inc.
      Automation Alley
      Ball State University Center for Information and Communications Science
      Barbara A. Cherry
      Barbara S. Esbin
      Big Brothers Big Sisters of Will and Grundy Counties
      Black Leadership Forum, Inc.
      Bret Swanson, President, Entropy Economics LLC
      Bright House Networks, LLC
      Broadband Institute of California and Broadband Regulatory Clinic
      Broadcast Music, Inc.
      BT Americas Inc.
      Cablevision Systems Corporation
      California Consumers for Net Neutrality
      California Public Utilities Commission
      Camiant, Inc.
      Carbon Disclosure Project
      Career Link Inc.
      Catherine Sandoval and Broadband Institute of California
      CDMA Development Group, Inc.
      Center for Democracy & Technology
      Center for Individual Freedom

                                     iii
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      Center for Media Justice, Consumers Union, Media Access Project, and
         New America
      Center for Rural Strategies
      Center for Social Media
      Central Washington Hispanic Chamber of Commerce
      CenturyLink
      Chairman Kenneth D. Koehler, McHenry County Board
      Chamber of Commerce of St. Joseph County
      Charter Communications
      Christopher S. Yoo
      Christopher Sacca
      Cincinnati Bell Wireless LLC
      Cisco Systems, Inc.
      City of Philadelphia
      Clearwire Corporation
      Coalition of Minority Chambers
      ColorOfChange.org
      Comcast Corporation
      Communications Workers of America
      Communications Workers of America—District 2 in West Virginia
      Communications Workers of America—Local 3806
      Communications Workers of America—Local 4900
      Competitive Enterprise Institute
      COMPTEL
      CompTIA
      Computer & Communications Industry Association
      Computer Communications Industry Association, Consumer Electronics
         Association
      Computing Technology Industry Association
      CONNECT
      Connecticut Association for United Spanish Action, Inc.
      Connecticut Technology Council
      Consumer Policy Solutions
      Corning Incorporated
      Corporation for National Research Initiatives
      Council of Baptist Pastors of Detroit & Vicinity, Inc.
      Covad Communications Company
      Cox Communications, Inc.
      Craig Settles (Successful.com)
      CREDO Action

                                      iv
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      Cricket Communications, Inc.
      CTIA - The Wireless Association
      CWA Indiana State Council
      CWA Local 4900
      Damian Kulash
      Daniel Lyons
      Data Foundry, Inc.
      David Clark, William Lehr, and Steve Bauer
      David D.F. Uran, Mayor, City of Crown Point, Indiana
      Deborah Turner
      Debra Brown
      Derek Leebaert
      Dickinson Area Partnership
      Digital Education Coalition
      Digital Entrepreneurs
      Digital Society
      DISH Network L.L.C.
      Distributed Computing Industry Association
      Downtown Springfield, Inc.
      EarthLink, Inc.
      Eastern Kentucky’s Youth Association for the Arts, Inc.
      Economic Development Council of Livingston County
      Eight Mile Boulevard Association
      El Centro
      Electronic Frontier Foundation
      Elgin Area Chamber
      Elizabeth A. Dooley, Ed. D.
      Entertainment Software Association
      Ericsson Inc.
      Erie Neighborhood House
      Fiber-to-the-Home Council
      Free Press
      Frontier Communications
      Future of Music Coalition
      Future of Privacy Forum
      G. Baeslack
      General Communication, Inc.
      Genesee Regional Chamber of Commerce
      George Ou
      Georgetown/Scott County Kentucky Chamber of Commerce

                                     v
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      Georgia Minority Supplier Development Council
      Global Crossing North America, Inc.
      Global Intellectual Property Center
      Google Inc.
      Great River Economic Development Foundation
      Greater Kokomo Economic Development Alliance
      GSM Association
      GVNW Consulting, Inc.
      Hamilton County Alliance
      Hance Haney
      Hannah Miller
      Harris Corporation
      HB Clark
      Hispanic Leadership Fund
      Hispanic Technology and Telecommunications Partnership
      Hmong/American Friendship Association, Inc.
      Hughes Network Systems, LLC
      Illinois Hispanic Chamber of Commerce
      Independent Creator Organizations
      Independent Film & Television Alliance
      Independent Telephone & Telecommunications Alliance
      Indiana Secretary of State
      Indianapolis Urban League
      Information and Communications Manufacturers and Service Providers
      Information Technology and Innovation Foundation
      Information Technology Industry Council
      Institute for Emerging Leaders, Inc.
      Institute for Liberty
      Institute for Policy Innovation
      Institute for Policy Integrity
      Intellectual Property and Communications Law Program at Michigan State
          University College of Law
      International Documentary Association, Film Independent, and others
      Internet Freedom Coalition
      Internet Innovation Alliance
      Internet Society
      Intrado Inc. and Intrado Communications Inc.
      Ionary Consulting
      Jared Morris
      Jeanne K. Magill, Pabst Farms Development Inc.

                                      vi
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      Joe Armstrong, Tennessee State Representative
      Joe Homnick
      John Palfrey
      John Staurulakis, Inc.
      Johnson County Board of Commissioners
      Joint Center for Political and Economic Studies
      Joliet Region Chamber of Commerce & Industry
      Kankakee County Farm Bureau
      Karen Kerrigan, President & CEO, Small Business & Entrepreneurship
         Council
      Karen Maples
      Kentucky Commission on the Deaf and Hard of Hearing
      Labor Council for Latin American Advancement
      Lake Superior Community Partnership
      Lakewood Chamber of Commerce
      Latin American Chamber of Commerce of Charlotte
      Latin Chamber of Commerce of Nevada
      Latinos for Internet Freedom and Media Action Grassroots Network
      Latinos in Information Sciences & Technology Association
      Laurence Brett Glass, d/b/a LARIAT
      Lawerence E. Denney, Speaker of the House, State of Idaho
      Lawrence County Economic Growth Council
      Lawrence Morrow
      Leadership East Kentucky
      League of United Latin American Citizens
      Leap Wireless International, Inc. and Cricket Communications, Inc.
      Level 3 Communications LLC
      Links Technology Solutions, Inc.
      Lisa Marie Hanlon, TelTech Communications LLC
      M3X Media, Inc.
      Mabuhay Alliance
      Maneesh Pangasa
      Mary-Anne Wolf
      Matthew J. Cybulski
      Mayor Brad Stephens
      Mayor George Pabey, City of East Chicago, Indiana
      Mayor Leon Rockingham, Jr.
      Mayor Rudolph Clay, Gary, Indiana
      McAllen Solutions



                                     vii
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      Media Action Grassroots Network, ColorOfChange.org, Presente.org,
        Applied Research Center, Afro-Netizen, National Association of
        Hispanic Journalists, Native Public Media, and Rural Broadband Policy
        Group
      MegaPath, Inc. and Covad Communications Company
      Messaging Anti-Abuse Working Group
      MetroPCS Communications, Inc.
      Michele Hodges, Troy Chamber
      Microsoft Corp.
      Mid-Atlantic Community Papers Association, on behalf of Association of
        Free Community Papers, Community Papers of Michigan, Free
        Community Papers of New York, Community Papers of Florida,
        Midwest Free Community Papers, Community Papers of Ohio and West
        Virginia, Southeastern Advertising Publishers Association, Wisconsin
        Community Papers
      Mike Riley
      Ministerial Alliance Against the Digital Divide
      Mississippi Center for Education Innovation
      Mississippi Center for Justice
      MLB Advanced Media, L.P.
      Mobile Future
      Mobile Internet Content Coalition
      Motion Picture Association of America, Inc.
      Motorola, Inc.
      Nacional Records
      Nate Zolman
      National Association for the Advancement of Colored People
      National Association of Manufacturers
      National Association of Realtors
      National Association of State Utility Consumer Advocates
      National Association of Telecommunications Office & Advisors
      National Black Chamber of Commerce
      National Cable & Telecommunications Association
      National Coalition on Black Civic Participation
      National Council of La Raza
      National Emergency Number Association
      National Exchange Carrier Association, Inc.
      National Exchange Carrier Association, Inc., National Telecommunications
        Cooperative Association, Organization for the Promotion &



                                      viii
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         Advancement of Small Telecommunication Companies, Eastern Rural
         Telecom Association, Western Telecommunications Alliance
      National Farmers Union
      National Foundation for Women Legislators High Speed Internet Caucus
      National Hispanic Caucus of State Legislators
      National Hispanic Media Coalition
      National Medical Association
      National Organization of Black Elected Legislative Women et al.
      National Organizations
      National Rural Health Association
      National Spinal Cord Injury Association
      National Taxpayers Union
      National Telecommunications Cooperative Association
      National Urban League
      Netflix, Inc.
      Network 2010
      New America Foundation
      New Jersey Rate Counsel
      New York State Office of Chief Information Officer/Office for Technology
         (CIO/OFT)
      Nicholas Bramble, Information Society Project at Yale Law School
      Nickolaus E. Leggett
      Nippon Telegraph and Telephone Corporation
      Nokia Siemens Networks US LLC
      Northern Nevada Black Cultural Awareness Society
      Office of the Attorney General of Virginia
      Office of the Mayor, City of Peru
      Older Adults Technology Services, Inc.
      Open Internet Coalition
      Open Media and Information Companies Initiative
      Operation Action U.P.
      Oregon State Grange
      Organization for the Promotion & Advancement of Small
         Telecommunication Companies
      PAETEC Holding Corp.
      Patricia Dye
      Performing Arts Alliance
      Phil Kerpen, Vice President, Americans for Prosperity
      Property Rights Alliance
      Public Interest Advocates

                                      ix
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      Public Interest Commenters
      QUALCOMM Incorporated
      Qwest Communications International Inc.
      R. L. Barnes
      Rainbow PUSH Coalition
      Recording Industry Association of America
      Red Hat, Inc.
      Rev. W.L.T. Littleton
      Richmond Chamber of Commerce
      RNK Communications
      Robert K. McEwen d/b/a PowerView Systems
      Robert Steele, Cook County Commissioner
      Rural Cellular Association
      Safe Internet Alliance
      Saint Xavier University
      Sandvine Inc.
      Satellite Broadband Commenters
      SavetheInternet.com
      Scott Cleland
      Scott Jordan
      Sean Kraft
      Sean Sowell
      Seth Johnson
      Shelby County Development Corporation
      Skype Communications S.A.R.L.
      Sling Media, Inc.
      Smartcomm, LLC
      Smithville Telephone Company
      Software & Information Industry Association
      Songwriters Guild of America
      Sony Electronics Inc.
      Southern Company Services, Inc.
      Southern Wayne County Regional Chamber of Commerce
      Sprint Nextel Corp.
      St. Louis Society for the Blind and Visually Impaired
      Stephen Beck
      Steve Forte, Chief Strategy Officer, Telerik
      stic.man of Dead Prez
      SureWest Communications
      Susan Jacobi

                                     x
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      TDS Telecommunications Corp.
      Tech Council of Maryland
      TechAmerica
      Telecom Italia, S.P.A.
      Telecom Manufacturer Coalition
      Telecommunications Industry Association
      TeleDimensions, Inc.
      Telefonica S.A.
      Telephone Association of Maine
      Texas Office of Public Utility Counsel
      Texas Public Policy Foundation
      Texas Statewide Telephone Cooperative, Inc.
      The Ad Hoc Telecommunications Users Committee
      The Berroteran Group
      The Disability Network
      The Free State Foundation
      The Greater Centralia Chamber of Commerce & Tourism Office
      The Greenlining Institute
      The Heartland Institute
      The Nebraska Rural Independent Companies
      The Senior Alliance
      Thomas C. Poorman, President, Zanesville-Muskingum County Chamber of
         Commerce
      Thomas D. Sydnor II, Senior Fellow and Director, Center for the Study of
         Digital Property at the Progress & Freedom Foundation
      Thomas Richard Reinsel, Executive in Residence, Sewickley Oak Capital
      Thomas W. Hazlett
      Tim Wu
      Time Warner Cable Inc.
      T-Mobile USA, Inc.
      tw telecom inc.
      U.S. Chamber of Commerce
      Union Square Ventures
      United Service Organizations of Illinois
      United States Hispanic Chamber of Commerce
      United States Telecom Association
      UNITY: Journalists of Color, Inc.
      Upper Peninsula Economic Development Alliance
      Upper Peninsula Health Plan
      Urban League of Metropolitan Seattle

                                      xi
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       Various Advocates for the Open Internet
       Verizon and Verizon Wireless
       Via Christi Health System eCare-ICU
       Village of Maywood
       Vincent Watts of the Greater Stark County Urban League
       Voice on the Net Coalition
       Vonage Holdings Corp.
       Voto Latino
       Washington State Grange
       Wayne Brough, James Gattuso, Hance Haney, Ryan Radia, and James
          Lakely
       Windstream Communications, Inc.
       Winston-Salem Urban League
       Wireless Communications Association International, Inc.
       Wireless Internet Service Providers Association
       World Institute on Disability et al.
       Writers Guild of America, East AFL-CIO
       Writers Guild of America, West, Inc.
       XO Communications, LLC
       YWCA of St. Joseph County

       B.    Ruling Under Review

       Verizon and MetroPCS appeal the final order of the Federal

 Communications Commission captioned In re Preserving the Open Internet;

 Broadband Industry Practices, Report and Order, Docket Nos. 09-191, 07-52, 25

 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg. 59192 (Sept. 23, 2011) (JA__).

       C.    Related Cases

       This case has been consolidated with Case Nos. 11-1356, 11-1403, 11-1404,

 and 11-1411.

       This case is related to Cellco Partnership d/b/a Verizon Wireless v. FCC,

 Nos. 11-1135 & 11-1136 (D.C. Cir.), in that both cases involve substantially the


                                         xii
USCA Case #11-1355      Document #1381604           Filed: 07/02/2012   Page 15 of 116


 same parties and the similar legal issue of the Commission’s statutory authority

 under Section 706 and Title III of the Communications Act to regulate broadband

 Internet access services and the extent to which such regulation constitutes

 prohibited common-carrier regulation under FCC v. Midwest Video Corp., 440

 U.S. 689 (1979).*

                                 By: /s/ Helgi C. Walker
                                 _______________________
                                 Helgi C. Walker
                                 WILEY REIN LLP
                                 1776 K Street, NW
                                 Washington, DC 20006
                                 TEL: (202) 719-7000


                                 By: /s/ Stephen B. Kinnaird
                                 ________________________
                                 Stephen B. Kinnaird
                                 PAUL, HASTINGS, JANOFSKY & WALKER LLP
                                 875 15th Street, NW
                                 Washington, DC 20006
                                 TEL: (202) 551-1700




 *
      MetroPCS does not agree that Cellco Partnership is a related case. See
 MetroPCS Docketing Statement, No. 11-1403 (D.C. Cir. filed Nov. 29, 2011).


                                         xiii
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                  CORPORATE DISCLOSURE STATEMENTS
       Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Rule

 26.1 of this Court, Verizon and MetroPCS hereby submit the following corporate

 disclosure statements:

       The Verizon companies participating in this filing are Cellco Partnership,

 d/b/a Verizon Wireless, and the regulated, wholly-owned subsidiaries of Verizon

 Communications Inc. Cellco Partnership, a general partnership formed under the

 law of the State of Delaware, is a joint venture of Verizon Communications Inc.

 and Vodafone Group Plc. Verizon Communications Inc. and Vodafone Group Plc

 indirectly hold 55 percent and 45 percent partnership interests, respectively, in

 Cellco Partnership. Both Verizon Communications Inc. and Vodafone Group Plc

 are publicly-traded companies. Verizon Communications Inc. has no parent

 company. No publicly held company owns 10 percent or more of Verizon

 Communications Inc.’s stock. Insofar as relevant to this litigation, Verizon’s

 general nature and purpose is to provide communications services, including

 broadband Internet access services provided by its wholly-owned telephone

 company and Verizon Online LLC subsidiaries and by Verizon Wireless.

       MetroPCS Communications, Inc. is a publicly traded company organized to

 provide wireless and data service to its customers. MetroPCS 700 Mhz, LLC;

 MetroPCS AWS, LLC; MetroPCS California, LLC; MetroPCS Florida, LLC;



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 MetroPCS Georgia, LLC; MetroPCS Massachusetts, LLC; MetroPCS Michigan,

 Inc.; MetroPCS Networks California, LLC; MetroPCS Networks Florida LLC; and

 MetroPCS Texas, LLC are wholly-owned subsidiaries of MetroPCS Wireless, Inc.

 MetroPCS Wireless, Inc. is a wholly-owned direct subsidiary of MetroPCS, Inc.,

 which in turn is a wholly-owned direct subsidiary of MetroPCS Communications,

 Inc. MetroPCS Communications, Inc. has no parent corporation, and only one

 publicly-traded company, BlackRock, Inc., through its subsidiary BlackRock

 Institutional Trust Company, N.A., owns more than 10 percent of its stock.




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           STATEMENT REGARDING DEFERRED APPENDIX
      The parties have conferred and intend to use a deferred joint appendix.




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                                     TABLE OF CONTENTS
                                                                                                              PAGE
 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............i
 CORPORATE DISCLOSURE STATEMENTS .................................................. xiv
 STATEMENT REGARDING DEFERRED APPENDIX.................................... xvi
 TABLE OF AUTHORITIES .............................................................................. xviii
 GLOSSARY........................................................................................................ xxvi
 JURISDICTIONAL STATEMENT .........................................................................1
 STATEMENT OF ISSUES ......................................................................................1
 PERTINENT STATUTES........................................................................................1
 PRELIMINARY STATEMENT ..............................................................................2
 STATEMENT OF FACTS .......................................................................................4
 SUMMARY OF ARGUMENT ..............................................................................11
 STANDING ............................................................................................................13
 ARGUMENT ..........................................................................................................13
 STANDARD OF REVIEW ....................................................................................13
 I.       THE RULES DIRECTLY CONFLICT WITH THE
          COMMUNICATIONS ACT. .......................................................................14
 II.      THE FCC LACKS STATUTORY AUTHORITY FOR THE RULES .......21
 III.     THE ORDER VIOLATES THE FIRST AND FIFTH
          AMENDMENTS. .........................................................................................42
 IV.       THE ORDER IS ARBITRARY AND CAPRICIOUS. ...............................50
 CONCLUSION.......................................................................................................53
 CERTIFICATE OF COMPLIANCE
 STATUTORY ADDENDUM
 CERTIFICATE OF SERVICE




                                                          xvii
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                                     TABLE OF AUTHORITIES

                                                                                                           Page(s)
                                                     CASES
 ACLU v. FCC,
   823 F.2d 1554 (D.C. Cir. 1987)..........................................................................14

 Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission,
    988 F.2d 146 (D.C. Cir. 1993)............................................................................53

 American Library Ass’n v. FCC,
   406 F.3d 689 (D.C. Cir. 2005)................................................................13, 21, 24

 Associated Gas Distributors v. FERC,
    824 F.2d 981 (D.C. Cir. 1987)............................................................................51

 Barnhart v. Sigmon Coal Co.,
   534 U.S. 438 (2002)............................................................................................21

 Bell Atlantic Telephone Cos. v. FCC,
    24 F.3d 1441 (D.C. Cir. 1994)............................................................................42

 Burlington Northern & Santa Fe Railroad Co. v. Surface Transportation
   Board,
   403 F.3d 771 (D.C. Cir. 2005)............................................................................52

 C-SPAN v. FCC,
    545 F.3d 1051 (D.C. Cir. 2008)..........................................................................14

 Cablevision Systems Corp. v. FCC,
   597 F.3d 1306 (D.C. Cir. 2010)..........................................................................48

 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
   467 U.S. 837 (1984)............................................................................................24

 City of Ladue v. Gilleo,
    512 U.S. 43 (1994)..............................................................................................48



 *Authorities upon which we chiefly rely are marked with asterisks.



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 Comcast Cablevision of Broward County, Inc. v. Broward County,
   124 F. Supp. 2d 685 (S.D. Fla. 2000) .................................................................44

 Comcast Corp. v. FCC,
   579 F.3d 1 (D.C. Cir. 2009)................................................................................53

 *Comcast Corp. v. FCC,
   600 F.3d 642 (2010)................................................................................................
   ...................... 2, 5, 6, 18, 22, 24, 25, 26, 27, 28, 29, 30, 32, 36, 37, 39, 41, 42, 53

 Community Television, Inc. v. FCC,
   216 F.3d 1133 (D.C. Cir. 2000)..........................................................................40

 Competitive Telecommunications Ass’n v. FCC,
   998 F.2d 1058 (D.C. Cir. 1993)..........................................................................20

 Edward J. DeBartolo Corp. v. Florida Gulf Coast Building &
    Construction Trade Council,
   485 U.S. 568 (1988)............................................................................................42

 Environmentel, LLC v. FCC,
   661 F.3d 80 (D.C. Cir. 2011)..............................................................................39

 FCC v. Fox Television Stations, Inc.,
   129 S. Ct. 1800 (2009)..................................................................................32, 52

 *FCC v. Midwest Video Corp.,
   440 U.S. 689 (1979)................................................. 11, 14, 15, 16, 17, 19, 24, 53

 FCC v. NBC(KOA),
   319 U.S. 239 (1943)............................................................................................41

 FCC v. Sanders Brothers,
   309 U.S. 642 (1940)......................................................................................37, 39

 *FDA v. Brown & Williamson Tobacco Corp.,
   529 U.S. 120 (2000)..........................................................................12, 22, 23, 24

 Fox Television Stations, Inc. v. FCC,
   280 F.3d 1027 (D.C. Cir. 2002)......................................................................... 51

 Gonzales v. Oregon,
   546 U.S. 243 (2006)............................................................................................23


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 Horsehead Resources Development Co. v. Browner,
   16 F.3d 1246 (D.C. Cir. 1994)............................................................................51

 Illinois Bell Telephone Co. v. Village of Itasca,
     503 F. Supp. 2d 928 (N.D. Ill. 2007)..................................................................44

 Iowa Telecommunications Services v. Iowa Utilities Board,
    563 F.3d 743 (8th Cir. 2009) ..............................................................................18

 Lead Industries Ass’n v. EPA,
    647 F.2d 1130 (D.C. Cir. 1980)..........................................................................14

 Loretto v. Teleprompter Manhattan CATV Corp.,
    458 U.S. 419 (1982)............................................................................................49

 Los Angeles v. Preferred Communications, Inc.,
    476 U.S. 488 (1986)............................................................................................42

 MCI Telecommunications Corp. v. AT&T Co.,
   512 U.S. 218 (1994)......................................................................................15, 40

 MPAA v. FCC,
   309 F.3d 796 (D.C. Cir. 2002)................................................................13, 38, 39

 *NARUC v. FCC,
   525 F.2d 630 (D.C. Cir. 1976) .....................................................................14, 20

 *NARUC v. FCC,
   533 F.2d 601 (D.C. Cir. 1976)..........................................................13, 14, 20, 25

 National Fuel Gas Supply Corp. v. FERC,
   468 F.3d 831 (D.C. Cir. 2006)......................................................................50, 52

 NBC v. United States,
   319 U.S. 190 (1943)............................................................................................37

 NCTA v. Brand X Internet Services, Inc.,
   545 U.S. 967 (2005)........................................................................................5, 15

 Penn Central Transportation Co. v. City of New York,
   438 U.S. 104 (1978)............................................................................................49




                                                         xx
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 Qi-Zhuo v. Meissner,
    70 F.3d 136 (D.C. Cir. 1995)..............................................................................38

 Quincy Cable TV, Inc. v. FCC,
   768 F.2d 1434 (D.C. Cir. 1985)..........................................................................46

 Regents of University System v. Carroll,
   338 U.S. 586 (1950)............................................................................................39

 SEC v. Chenery Corp.,
   332 U.S. 194 (1947)............................................................................................22

 Time Warner Telecom, Inc. v. FCC,
    507 F.3d 205 (3d Cir. 2007) ...........................................................................4, 23

 Time Warner Entertainment Co. v. FCC,
    56 F.3d 151 ...................................................................................................47, 48

 Turner Broadcasting System v. FCC,
    512 U.S. 622 (1994)....................................................................42, 43, 45, 46, 47

 Turner Broadcasting System v. FCC,
    520 U.S. 180 (1997)......................................................................................46, 47

 United States v. O’Brien,
   391 U.S. 367 (1968)......................................................................................45, 46

 United States v. Southwestern Cable Co.,
   392 U.S. 157 (1968)............................................................................................24

 University of Great Falls v. NLRB,
   278 F.3d 1335 (D.C. Cir. 2002)..........................................................................14

 U.S. AirWaves, Inc. v. FCC,
    232 F.3d 227 (D.C. Cir. 2000)......................................................................40, 41

 VITELCO v. FCC,
    198 F.3d 921 (D.C. Cir. 1999)......................................................................18, 19

 Western Broadcasting Co. v. FCC,
   674 F.2d 44 (D.C. Cir. 1982)........................................................................40, 41




                                                          xxi
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 Whitman v. American Trucking Ass’ns,
   531 U.S. 457 (2001)......................................................................................23, 27


                                             FEDERAL STATUTES

 5 U.S.C. § 706(2) .....................................................................................................14

 47 U.S.C. § 153(24) ...................................................................................................4

 *47 U.S.C. § 153(51) .....................................................................................4, 11, 15

 47 U.S.C. § 153(53) .............................................................................................4, 19

 47 U.S.C. § 153(h) ...................................................................................................16

 47 U.S.C. § 154(k) ...................................................................................................42

 47 U.S.C. § 160........................................................................................................29

 47 U.S.C. § 201........................................................................................................20

 47 U.S.C. § 201(b) .......................................................................................17, 30, 34

 47 U.S.C. § 202(a) .............................................................................................17, 20

 47 U.S.C. § 218........................................................................................................42

 47 U.S.C. § 230(b)(2).........................................................................................23, 27

 47 U.S.C. § 251........................................................................................................30

 47 U.S.C. § 251(a)(1)...............................................................................................34

 47 U.S.C. § 252........................................................................................................30

 47 U.S.C. § 253........................................................................................................30

 47 U.S.C. § 254........................................................................................................30

 47 U.S.C. § 255........................................................................................................30

 47 U.S.C. § 256........................................................................................................30

 47 U.S.C. § 257........................................................................................................30

                                                          xxii
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 47 U.S.C. § 258........................................................................................................30

 47 U.S.C. § 259........................................................................................................30

 47 U.S.C. § 260........................................................................................................30

 47 U.S.C. § 261........................................................................................................30

 47 U.S.C. § 303........................................................................................................38

 47 U.S.C. § 303(g) ...................................................................................................41

 47 U.S.C. § 309(a) ...................................................................................................41

 47 U.S.C. § 309(j)(3) ...............................................................................................41

 47 U.S.C. § 316(a)(1).........................................................................................38, 39

 47 U.S.C. § 332(c)(1)(A) .....................................................................................4, 21

 *47 U.S.C. § 332(c)(2)...................................................................................4, 11, 15

 47 U.S.C. § 332(d)(1).................................................................................................4

 47 U.S.C. § 332(d)(3).................................................................................................4

 47 U.S.C. § 335(b)(3)...............................................................................................21

 47 U.S.C. § 402(a) .....................................................................................................1

 47 U.S.C. § 402(b)(5).................................................................................................1

 47 U.S.C. § 522(4) ...................................................................................................36

 47 U.S.C. § 522(5) ...................................................................................................36

 47 U.S.C. § 522(13) .................................................................................................36

 47 U.S.C. § 536........................................................................................................36

 47 U.S.C. § 548(b) ...................................................................................................37

 47 U.S.C. § 1302(a) .....................................................................................28, 29, 30

 47 U.S.C. § 1302(b) .................................................................................................33


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 47 U.S.C. § 1302(c) .................................................................................................33



                                     LEGISLATIVE MATERIALS
 Internet Freedom, Broadband Promotion, and Consumer Protection Act of
    2011, S. 74, 112th Cong. (2011)...........................................................................8

 Internet Non-Discrimination Act of 2006, S. 2360, 109th Cong. (2006)..................8



                                 ADMINISTRATIVE MATERIALS

 Appropriate Framework for Broadband Access to the Internet Over Wireline
   Facilities,
   20 F.C.C.R. 14986 (2005) ...................................................................................5

 Appropriate Framework for Broadband Access to the Internet Over Wireline
   Facilities,
   20 F.C.C.R. 14853 (2005).................................................................................4, 5

 Appropriate Regulatory Treatment for Broadband Access to the Internet
   Over Wireless Networks,
   22 F.C.C.R. 5901 (2007) ..................................................................................4, 5

 Connect America Fund,
   26 F.C.C.R. 17663 (2011)...................................................................................34

 Deployment of Wireline Services Offering Advanced Telecommunications
   Capability,
   13 F.C.C.R. 24012 (1998) .......................................................................6, 29, 30

 Formal Complaint of Free Press et al.,
   23 F.C.C.R. 13028 (2008) ...................................................................................5

 Framework for Broadband Internet Service,
    25 F.C.C.R. 7866 (2010).......................................................................................7

 High-Speed Access to the Internet Over Cable and Other Facilities,
    17 F.C.C.R. 4798 (2002).................................................................................5, 36



                                                         xxiv
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 Implementation of the Non-Accounting Safeguards of Sections 271 and 272
   of the Communications Act of 1934,
   11 F.C.C.R. 21905 (1996)...................................................................................19

 Policy & Rules Concerning Rates for Dominant Carriers,
    4 F.C.C.R. 2873 (1989).......................................................................................30

 Preserving the Open Internet,
    24 F.C.C.R. 13064 (2009).....................................................................................6

 Sixth Broadband Deployment Report,
    25 F.C.C.R. 9556 (2010).....................................................................................33

 Time Warner Cable Request for Declaratory Ruling,
    22 F.C.C.R. 3513 (WCB 2007) ..........................................................................34



                                           MISCELLANEOUS
 A. Schlick, A Third-Way Legal Framework for Addressing the Comcast
    Dilemma,
    2010 WL 1840579 (May 6, 2010) ........................................................................7

 D. Lyons, Virtual Takings: The Coming Fifth Amendment Challenge to Net
    Neutrality Regulation,
    86 Notre Dame L. Rev. 65 (2011) ......................................................................49

 FTC, Staff Report: Broadband Connectivity Competition Policy (2007) ..............52

 J. Genachowski, The Third Way: A Narrowly Tailored Broadband
     Framework,
     2010 WL 1840578 (May 6, 2010) ........................................................................7

 Transcript of Oral Argument, Comcast Corp. v. FCC (No. 08-1291) ....................24




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                              GLOSSARY

 1996 Act                    Telecommunications Act of 1996

 Act                         Communications Act of 1934

 Advanced Services Order     FCC order released on August 7, 1998 declaring
                             that Section 706(a) of the 1996 Act does not
                             constitute an independent grant of statutory
                             authority to the FCC

 Brand X                     2005 Supreme Court opinion affirming Cable
                             Modem Order

 Cable Modem Order           FCC order released on March 15, 2002
                             classifying cable modem Internet access service
                             as an information service and not a cable service

 Comcast                     2010 D.C. Circuit opinion vacating the Comcast
                             Order and holding that the FCC failed to justify
                             the exercise of ancillary authority over Comcast’s
                             network management practices

 Comcast Order               FCC order released on August 20, 2008 finding
                             that Comcast violated “federal Internet policy”
                             and requiring Comcast to cease certain network
                             management practices

 DOJ                         United States Department of Justice

 FCC                         Federal Communications Commission

 JA                          Joint Appendix

 Midwest Video II            1979 Supreme Court opinion vacating FCC’s
                             public access rules as impermissible common-
                             carrier obligations




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 MVPDs                       Multichannel Video Programming Distributors

 NARUC I                     1976 D.C. Circuit opinion affirming FCC order
                             classifying specialized mobile radio systems as
                             non-common carriers

 NARUC II                    1976 D.C. Circuit opinion vacating FCC order
                             preempting state common-carrier regulation over
                             the use of cable system leased access channels for
                             two-way, point-to-point, non-video
                             communications

 NOI                         FCC notice of Inquiry released on June 17, 2010
                             proposing to reclassify broadband Internet access
                             service as a telecommunications service in
                             response to the Comcast decision

 NPRM                        FCC Notice of Proposed Rulemaking released on
                             October 22, 2009 inviting comment on proposal
                             to adopt Open Internet rules

 Order                       FCC order released on December 23, 2010
                             formally adopting “net neutrality” rules that
                             regulate the broadband Internet access services
                             offered by wireless and wireline providers

 Turner I                    1994 Supreme Court opinion holding that the
                             must-carry provisions of Cable Television
                             Consumer Protection and Competition Act of
                             1992 are subject to intermediate scrutiny under
                             the First Amendment

 Turner II                   1997 Supreme Court opinion upholding the must-
                             carry provisions of Cable Television Consumer
                             Protection and Competition Act of 1992

 VoIP                        Voice over Internet Protocol

 WCB                         FCC Wireline Competition Bureau



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 Wireless Broadband Order    FCC order released on March 23, 2007
                             classifying wireless broadband Internet access
                             service as an information service and further
                             classifying mobile wireless broadband Internet
                             access service as a private mobile service

 Wireline Broadband Order    FCC order released on September 23, 2005
                             classifying wireline broadband Internet access
                             service as an information service




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                        JURISDICTIONAL STATEMENT
       This Court has jurisdiction over Appellants’ challenge to Preserving the

 Open Internet, 25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg. 59192 (Sept.

 23, 2011) (“Order”) (JA__), because the Order is final, Appellants “hold[]”

 wireless spectrum “license[s] which ha[ve] been modified … by the Commission,”

 47 U.S.C. § 402(b)(5); Order ¶¶ 133, 135 (JA__, __), and the appeals were timely

 filed. The Federal Communications Commission (“FCC”) has acknowledged that

 jurisdiction alternatively exists under 47 U.S.C. § 402(a) because Appellants

 timely filed Protective Petitions for Review.

                            STATEMENT OF ISSUES1

       1.     Whether the Order imposes common-carriage requirements on

 services that are statutorily exempt from such requirements or otherwise exceeds

 the FCC’s statutory authority.

       2.     Whether the Order is unconstitutional.

       3.     Whether the Order is arbitrary and capricious.

                             PERTINENT STATUTES
       Pertinent statutes are contained in the addendum.




 1
        MetroPCS, directly adverse to Verizon in another case involving common-
 carriage prohibitions, does not join in the common-carrier or Fifth Amendment
 arguments.


                                          1
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                          PRELIMINARY STATEMENT
       This appeal challenges the FCC’s second attempt to conjure a role for itself

 with respect to regulation of the Internet—in particular, broadband Internet access

 service. In Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010), this Court

 vacated the FCC’s previous effort as exceeding its statutory authority. Here again,

 the FCC has acted without statutory authority to insert itself into this crucial

 segment of the American economy, while failing to show any factual need to do so.

       Rather than proceeding with caution in light of Comcast, the FCC

 unilaterally adopted rules that go even farther than its prior action and impose

 dramatic new restrictions on broadband Internet access service providers. The

 Order imposes classic common-carrier obligations on broadband providers,

 requiring them to carry the traffic of all “edge providers” and even wading into

 price controls by setting a uniform, nondiscriminatory price of zero for such

 carriage. This regulation of Internet access service is expressly prohibited by the

 Communications Act (“Act”).

       Despite the FCC’s concession in Comcast that it lacked express authority in

 this area, the agency’s latest theory of authority arrogates unto itself plenary power

 to control all aspects of broadband Internet access service. Indeed, its sweeping

 theory extends to all other components of the Internet—from website, application,

 search engine, and content providers to specialized services to Internet backbone



                                            2
USCA Case #11-1355       Document #1381604            Filed: 07/02/2012     Page 33 of 116


 companies. Tellingly, the FCC found it necessary explicitly to disclaim that the

 rules currently reach such entities and even to clarify that other entities, e.g., coffee

 shops and airlines, are not covered.

       The Commission based this self-described “broad authority” to adopt the

 rules not on any express or otherwise clear delegation of authority but on a

 hodgepodge of provisions scattered throughout the Act “viewed as a whole.”

 Order ¶ 116 (JA__). However, none of these provisions remotely suggests that

 Congress ever intended to empower the agency with such vast authority over the

 Internet.

       The Commission also adopted the Order without any evidence of a

 systematic problem in need of solution, candidly recognizing that the Internet was

 already “open” and working well for consumers. And the Commission singled out

 broadband providers for burdensome new regulation even though other key

 providers in the Internet economy have the same theoretical incentive and ability to

 engage in the conduct that concerned the FCC.

       Finally, the Order infringes broadband network owners’ constitutional rights.

 It violates the First Amendment by stripping them of control over the transmission

 of speech on their networks. And it takes network owners’ property without

 compensation by mandating that they turn over those networks for the occupation

 and use of others at a regulated rate of zero, undermining owners’ multi-billion-



                                             3
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 dollar-backed expectations that they would be able to decide how best to employ

 their networks to serve consumers and deterring network investment.

                            STATEMENT OF FACTS

       Classification of Broadband Internet Access Service. The Act defines two

 mutually exclusive categories of communications service: (i) “telecommunications

 service,” a common-carrier service subject to regulation under Title II, 47 U.S.C.

 §§ 153(51), 153(53); and (ii) “information service,” a service exempt from

 common-carrier regulation, id. §§ 153(24), 153(51).

       It also defines two categories of mobile service. “Commercial mobile

 service” is a type of wireless telecommunications service that is interconnected

 with the public switched telephone network and subject to common-carrier

 regulation under Title II. 47 U.S.C. § 332(c)(1)(A), (d)(1). Any mobile service

 that is not a “commercial mobile service” constitutes “private mobile service” that

 is, like information service, immune from common-carrier regulation. Id.

 § 332(c)(2), (d)(3).

       The FCC has held that wireline and wireless broadband Internet access is an

 information service.2 The FCC has also ruled that mobile wireless broadband


 2
        Appropriate Framework for Broadband Access to the Internet Over Wireline
 Facilities, 20 F.C.C.R. 14853, 14862-65 (¶¶ 12-17) (2005) (“Wireline Broadband
 Order”), aff’d, Time Warner Telecom, Inc. v. FCC, 507 F.3d 205 (3d Cir. 2007);
 Appropriate Regulatory Treatment for Broadband Access to the Internet Over
 Wireless Networks, 22 F.C.C.R. 5901, 5909-12 (¶¶ 19-29) (2007) (“Wireless

                                          4
USCA Case #11-1355      Document #1381604           Filed: 07/02/2012    Page 35 of 116


 Internet access is a private mobile service. Wireless Broadband Order, 22

 F.C.C.R. at 5915-21 (¶¶ 37-56). The Commission explained that these

 classifications were “consistent with Congressional intent to maintain a regime in

 which information service providers are not subject to Title II regulations as

 common carriers,” id. at 5916 (¶ 41), and repeatedly found that Internet service

 should exist in “a minimal regulatory environment” to “promote innovative and

 efficient communication,” Wireline Broadband Order, 20 F.C.C.R. at 14855 (¶ 1).

       Comcast Corp. v. FCC. In 2005, the FCC adopted a policy statement

 regarding broadband Internet access service. Appropriate Framework for

 Broadband Access to the Internet Over Wireline Facilities, 20 F.C.C.R. 14986

 (2005). The Commission ordered Comcast to cease certain practices that

 purportedly “r[an] afoul of” that document. Formal Complaint of Free Press et

 al., 23 F.C.C.R. 13028, 13050 (¶ 41) (2008) (“Comcast Order”).

       On review, this Court confronted the question “whether the Commission has

 authority to regulate an Internet service provider’s network management

 practices.” Comcast, 600 F.3d at 644. Noting the FCC’s concession “that it has no

 express statutory authority over such practices,” id., the Court vacated the Comcast

 Order for failure to demonstrate ancillary authority, id. at 660. Among other


 Broadband Order”); see also High-Speed Access to the Internet Over Cable and
 Other Facilities, 17 F.C.C.R. 4798, 4822-23 (¶ 38) (2002) (“Cable Modem
 Order”), aff’d, NCTA v. Brand X Internet Servs., Inc., 545 U.S. 967 (2005).

                                           5
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 things, Comcast rejected the FCC’s reliance on Section 706(a) of the

 Telecommunications Act of 1996 (“1996 Act”) because an “earlier, still-binding”

 FCC decision provided “that section 706 ‘does not constitute an independent grant

 of authority.’” Id. at 658 (quoting Deployment of Wireline Services Offering

 Advanced Telecommunications Capability, 13 F.C.C.R. 24012, 24047 (¶ 77)

 (1998) (“Advanced Services Order”)).

       Proceedings Below. In October 2009, while Comcast was pending, the FCC

 proposed formal rules regarding broadband Internet access service. See Preserving

 the Open Internet, Notice of Proposed Rulemaking, 24 F.C.C.R. 13064 (2009)

 (“NPRM”) (JA__). The NPRM claimed statutory authority based on the ancillary

 authority rationale of the Comcast Order, id. ¶¶ 83-85 (JA__-__), and asserted that

 Title III provided “additional authority” to regulate broadband service offered “via

 spectrum-based facilities,” id. ¶ 86 (JA__).

       Numerous commenters demonstrated that the proposed rules were unlawful

 and unnecessary. They showed that: the rules constituted prohibited common-

 carrier regulation; the FCC lacked statutory authority for the rules; the NPRM’s

 unbounded theory of authority would reach all corners of the Internet; and the rules

 were unconstitutional. See, e.g., Verizon Comments at 86-123, Docket No. 09-191

 (Jan. 14, 2010) (JA__-__); MetroPCS Comments at 4-11, Docket No. 09-191 (Jan.

 14, 2010) (JA__-__). Commenters further showed that: the NPRM identified no



                                           6
USCA Case #11-1355       Document #1381604           Filed: 07/02/2012    Page 37 of 116


 problem in need of regulatory solution; the rules would hamper innovation and

 deter network investment; and the focus on broadband providers was irrational

 because the lines between networks, applications, and devices are fast

 disappearing, and numerous players in the Internet ecosystem, such as content

 providers and search engines, play “gatekeeping” roles on the Internet. Verizon

 Comments at 31-40, 50-85, 129-30 (JA__, __, __); MetroPCS Comments at 11-14,

 24-35, 40-46 (JA__, __, __).

       In April 2010, while the NPRM was pending, this Court handed down

 Comcast. FCC officials described Comcast’s “undermining” of the Commission’s

 authority as “untenable,” creating a “serious problem that must be solved” before

 the rules could be adopted. J. Genachowski, The Third Way: A Narrowly Tailored

 Broadband Framework, 2010 WL 1840578, at *3-4 (May 6, 2010) (JA__); see id.

 at *3 (JA__) (stating that Comcast “cast serious doubt on the particular legal theory

 the Commission used ... to justify its ... role with respect to broadband Internet

 communications”); A. Schlick, A Third-Way Legal Framework for Addressing the

 Comcast Dilemma, 2010 WL 1840579 (May 6, 2010) (JA__).3



 3
        The FCC then initiated a proceeding to reclassify broadband Internet access
 as a “telecommunications service” subject to Title II because “Comcast appears to
 undermine prior understandings about the Commission’s” authority to regulate
 broadband. Framework for Broadband Internet Service, Notice of Inquiry, 25
 F.C.C.R. 7866, 7866-67 (¶¶ 1-2) (2010) (“NOI”) (JA__-__). Numerous parties
 objected to reclassification because, inter alia, it would be unlawful. See, e.g.,

                                           7
USCA Case #11-1355       Document #1381604            Filed: 07/02/2012    Page 38 of 116


       Comcast and the general question whether to regulate the Internet have

 attracted substantial attention from Congress. Since 2006, at least eleven pieces of

 “net neutrality” legislation were introduced and debated in Congress. E.g., Internet

 Non-Discrimination Act of 2006, S. 2360, 109th Cong. (2006); Internet Freedom,

 Broadband Promotion, and Consumer Protection Act of 2011, S. 74, 112th Cong.

 (2011). None was enacted.

       The Order. On December 21, 2010, the FCC adopted, by a vote of 3-2,

 rules governing “broadband Internet access service.” Order ¶ 44 (JA__). The

 Order recognized that the Internet “is a level playing field” that allows consumers

 to “make their own choices about what applications and services to use” and “to

 decide what content they want to access, create, or share.” Id. ¶ 3 (JA__).

 Nevertheless, the Commission adopted “prophylactic rules” to resolve the

 “significant uncertainty” created by Comcast. Id. ¶¶ 11, 42 (JA__, __). The Order

 asserted that “broadband providers may have economic incentives to block or

 otherwise disadvantage” edge providers, id. ¶ 21 (JA__), but identified only four

 isolated, anecdotal incidents of such supposed conduct, id. ¶ 35 (JA__).

       The Order’s core requirement is that broadband providers carry the Internet

 traffic of all edge providers, or specified classes of such providers, free of charge.



 Verizon Comments at 28-99, Docket No. 10-127 (July 15, 2010) (JA__-__). There
 has been no further action on the NOI.


                                            8
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 This duty arises out of the “no blocking” rule and the express prohibition on

 charging edge providers to transmit their traffic. Specifically, the no blocking rule

 prohibits fixed broadband providers from blocking any “lawful content,

 applications, services, or non-harmful devices,” id. at 88 § 8.5 (JA__); see id. ¶ 63

 (JA__)—i.e., “all traffic transmitted to or from end users of a broadband Internet

 access service,” id. ¶ 64 (JA__). Similarly, mobile providers cannot block access

 to (and thus must transmit all traffic to and from) “lawful websites.” Id. at 88 § 8.5

 (JA__); see id. ¶ 99 (JA__). In addition, mobile providers are prohibited from

 blocking “applications that compete with the provider’s voice and video telephony

 services.” Id. The FCC paired this rule with an explicit ban on charging “edge

 providers ... for delivering traffic to or carrying traffic from broadband provider’s

 end-user customers,” thus foreclosing a wide range of two-sided pricing models.

 Id. ¶ 67 (JA__); see id. ¶¶ 23-24, 99 (JA__-__, __). It also expressly reserved the

 right to regulate the prices that broadband providers charge their own end-users.

 Id. ¶ 122 n.381 (JA__).

       The FCC adopted a second rule prohibiting fixed broadband providers from

 “unreasonably discriminat[ing] in transmitting lawful network traffic.” Id. at 88

 § 8.7 (JA__); see id. ¶¶ 68-79 (JA__-__). The Order effectively banned certain

 potential commercial services—including any “commercial arrangement between a

 broadband provider and a third party to directly or indirectly favor some traffic



                                           9
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 over other traffic”—by stating that “it is unlikely” that such services “would satisfy

 the ‘no unreasonable discrimination’ standard.” Id. ¶ 76 (JA__). “The practice of

 a broadband Internet access service provider prioritizing its own content,

 applications, or services” is also effectively prohibited. Id. The no blocking and

 nondiscrimination rules are subject to “reasonable network management.” Id. at 89

 § 8.11(d) (JA__).

       Finally, the FCC established a “transparency” rule requiring all broadband

 providers to “publicly disclose” their network practices, performance

 characteristics, and commercial terms. Id. at 88 § 8.3 (JA__); id. ¶¶ 53-61, 97-98

 (JA__-__, __-__).

       As for statutory authority, the FCC concluded that Congress “expressed its

 instructions [to the Commission] in multiple sections [of the communications laws]

 which, viewed as a whole, provide broad authority” to adopt the rules. Id. ¶ 116

 (JA__). The FCC referenced approximately 24 disparate provisions scattered

 throughout the Act, but never explained what type of authority any particular

 provision provided. Id. ¶¶ 115-37, 170 (JA__-__, __). In again relying on Section

 706(a), the FCC maintained that its “understanding” of that provision as “a specific

 delegation of legislative authority” was “consistent with” the Advanced Services

 Order. Id. ¶¶ 119, 122 (JA__, __). The Order acknowledged that its claimed

 authority could reach other Internet providers, including providers of “specialized



                                          10
USCA Case #11-1355       Document #1381604           Filed: 07/02/2012    Page 41 of 116


 services” and “Internet backbone services.” Id. ¶¶ 47, 112-14 (JA__, __-__).

 Although the Commission chose not to regulate such providers, it indicated that it

 might do so in the future. Id.

       Dissenting Opinions. Two commissioners dissented. Commissioner

 McDowell concluded that the Order imposed “sweeping new common carriage-

 style obligations” on broadband Internet service, and that the Commission’s

 “tortured logic” on statutory authority was “designed to circumvent the effect of

 the D.C. Circuit’s Comcast decision.” Id. at 153, 168 (JA__, __). Commissioner

 Baker wrote that the FCC had “given itself plenary authority to regulate the

 Internet.” Id. at 191 (JA__).

                           SUMMARY OF ARGUMENT

       The rules adopted in the Order are unlawful for several independent reasons.

 First, the Act expressly forbids the FCC from applying common-carrier regulation

 to broadband Internet access, 47 U.S.C. §§ 153(51), 332(c)(2), but the rules do just

 that. They subject broadband providers to quintessential common-carrier duties by

 compelling them to carry the Internet traffic of all comers, and to do so at a

 uniform, nondiscriminatory price of zero. Accordingly, the rules directly conflict

 with the Act and thus cannot stand. FCC v. Midwest Video Corp., 440 U.S. 689

 (1979) (“Midwest Video II”).




                                           11
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       Second, the FCC otherwise lacks statutory authority for the rules. The

 Commission points to a hodgepodge of provisions to support its claim of “broad

 authority,” Order ¶ 116 (JA__), but does not and could not suggest that any of

 these provisions expressly authorizes these rules. And it defies “common sense”

 that Congress would have empowered the agency to “regulate an industry

 constituting a significant portion of the American economy … in so cryptic a

 fashion.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 159-60

 (2000) (citation omitted). Nor do these provisions provide any basis for asserting

 ancillary authority. Regardless, the FCC has not shown that the rules are necessary

 to achieve any statutorily-mandated task.

       Third, the rules are unconstitutional. Broadband networks are the modern-

 day microphone by which their owners engage in First Amendment speech. The

 FCC thus must identify an actual problem, and narrowly tailor its solution to solve

 that problem. The FCC’s “prophylactic” rules cannot pass that test. The Fifth

 Amendment likewise protects broadband network owners from government

 compulsion to turn over their private property for use by others without

 compensation, especially in light of their multi-billion-dollar investment-backed

 expectations.

       Finally, the rules are arbitrary and capricious. While the record is replete

 with substantial evidence (including analyses by a Nobel-prize winning economist



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 and former Chief Economists for the FCC and Justice Department) that the rules

 would deter network investment, it is devoid of evidence of any problem sufficient

 to justify these extensive regulations. The FCC also arbitrarily applied its rules to

 a single class of service providers even though myriad others in the Internet

 economy can engage in “gatekeeping.”

                                     STANDING
       Appellants have standing because they participated in the proceedings

 below, are providers of broadband Internet access services subject to the rules,

 hold wireless spectrum licenses modified by the Order, and are otherwise

 adversely affected and substantially aggrieved by the Order.

                                    ARGUMENT

                           STANDARD OF REVIEW

       The question whether Congress delegated the FCC authority to regulate

 broadband Internet access is reviewed de novo. Am. Library Ass’n v. FCC, 406

 F.3d 689, 699 (D.C. Cir. 2005); MPAA v. FCC, 309 F.3d 796, 801 (D.C. Cir.

 2002). Moreover, the “explicit statutory limitations on Commission authority” in

 the bans on common-carrier regulation “take[] the case outside of any area of

 deference to agency interpretation.” NARUC v. FCC, 533 F.2d 601, 618 (D.C. Cir.




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 1976) (“NARUC II”).4 And where, as here, “an agency’s assertion of power into

 new arenas is under attack, … courts should perform a close and searching analysis

 of congressional intent.” ACLU v. FCC, 823 F.2d 1554, 1567 n.32 (D.C. Cir.

 1987).

       The constitutional challenge is subject to de novo review. C-SPAN v. FCC,

 545 F.3d 1051, 1054 (D.C. Cir. 2008). Further, “the constitutional avoidance

 canon of statutory interpretation trumps Chevron deference.” Univ. of Great Falls

 v. NLRB, 278 F.3d 1335, 1340-41 (D.C. Cir. 2002). The remaining challenges are

 reviewed under the “arbitrary and capricious” standard. Lead Indus. Ass’n v. EPA,

 647 F.2d 1130, 1145 (D.C. Cir. 1980).

 I.    THE RULES DIRECTLY CONFLICT WITH THE
       COMMUNICATIONS ACT.
       An agency exceeds its statutory authority by issuing rules that contravene its

 governing statute. 5 U.S.C. § 706(2); Midwest Video II, 440 U.S. at 706. The

 Order exceeds the FCC’s authority because it subjects broadband Internet access

 service—which is both an information and private mobile service—to common-

 carriage regulation, a result expressly prohibited by the Act. It does so by

 requiring broadband providers to carry the traffic of all edge providers (or classes


 4
       Contrary to the FCC’s contention, Order ¶ 79 n.248 (JA__), it does not
 enjoy “any significant discretion in determining who is a common carrier.”
 NARUC v. FCC, 525 F.2d 630, 644 (D.C. Cir. 1976) (“NARUC I”).


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 thereof) at a common, nondiscriminatory rate of zero. This suffices to invalidate

 the Order. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994).

       1. Broadband Internet access service is statutorily exempt from common-

 carrier regulation. The Act establishes a regulatory dichotomy between

 “telecommunications service” and “information service,” see supra p. 4, and

 expressly states that a “telecommunications carrier shall be treated as a common

 carrier ... only to the extent that it is engaged in providing telecommunications

 services,” 47 U.S.C. § 153(51) (emphasis added). The Act thus “regulates

 telecommunications carriers, but not information-service providers, as common

 carriers.” Brand X, 545 U.S. at 975. And Section 332(c)(2) expressly precludes

 regulation of a private mobile service provider “as a common carrier for any

 purpose.” 47 U.S.C. § 332(c)(2) (emphasis added).

       The Commission has classified wireline and wireless broadband Internet

 access services as “information services,” and declared that mobile wireless

 Internet access is a “private mobile service.” See supra pp. 4-5. Accordingly, the

 Commission may not regulate broadband providers as common carriers.

       2. The Order does precisely what the Act prohibits. Under Midwest Video

 II, this cannot stand. There, the Supreme Court struck down the Commission’s

 “public access” rules as contrary to “the command of § 3(h) of the Act that ‘a

 person engaged in ... broadcasting shall not ... be deemed a common carrier’”



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 because the rules “relegated cable systems, pro tanto, to common-carrier status.”

 440 U.S. at 700-01 (quoting 47 U.S.C. § 153(h)). “Under the [public access] rules,

 cable systems [were] required to hold out dedicated channels on a first-come,

 nondiscriminatory basis,” “[a]nd the rules delimit[ed] what operators [could]

 charge.” Id. at 701-02. The rules thus bore the hallmark of common carrier status:

 “a duty to hold out facilities indifferently for public use.” Id. at 707 n.16; see id. at

 701 (“A common carrier does not ‘make individualized decisions, in particular

 cases, whether and on what terms to deal.’” (citation omitted)).

       So too here. The FCC’s rules constitute classic common-carrier obligations

 because they compel broadband providers to carry the Internet traffic of all comers,

 and at a uniform, nondiscriminatory price of zero. The no blocking rule denies

 broadband providers discretion in deciding which traffic from so-called edge

 providers to carry, except for unlawful material. See Order at 88 § 8.5 (JA__). It

 expressly forces fixed broadband providers to carry “all traffic transmitted to or

 from end users of a broadband Internet access service,” id. ¶ 64 (JA__), so that

 edge providers can reach “all U.S. end users,” id. ¶ 30 (JA__). Similarly, mobile

 broadband providers must carry all traffic to or from “any lawful website,” id.

 ¶ 100 (JA__), and guarantee access to “any and all applications that compete with”

 their “voice or video telephony services,” id. ¶ 99 (JA__). The Order thus compels

 broadband providers to “hold out” their networks for use by all, thereby depriving



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 them “of all discretion regarding who may exploit their [networks] and what may

 be transmitted over such [networks].” Midwest Video II, 440 U.S. at 693, 701-02.

       Further, the Order denies broadband providers discretion over carriage terms

 by setting a uniform price of zero; it forbids them from imposing any “charge

 [upon] edge providers ... for delivering traffic to or carrying traffic from the

 broadband provider’s end-user customers.” Order ¶ 67 (JA__); see id. ¶¶ 23-24,

 99 (JA__-__, __). The Order thereby limits the ability of providers to employ two-

 sided pricing models in which edge providers pay for some costs of the network

 (thereby pushing more costs onto consumers).5 It also effectively prohibits price

 discrimination among edge providers because all must pay the identical rate. In

 essence, the Order replicates the Act’s common-carrier provisions, determining

 that the only “reasonable” price for the transmission of edge providers’ traffic is

 zero, cf. 47 U.S.C. § 201(b), and that any deviation from that price would be

 unlawful, 47 U.S.C. § 202(a). Accordingly, the rules exert pervasive control over

 “the price and quality of access to end users,” Order ¶ 21 (JA__), just as the rules

 in Midwest Video II “circumscribe[d] what operators [could] charge for privileges

 of access and use of facilities and equipment” to reach end-users, 440 U.S. at 694.

 And “pervasive rate regulation to ensure that the company provides the service at

 5
      It is no answer to say that providers can charge end-users at prices that the
 competitive market will bear, Order ¶ 79 (JA__), because the Order still imposes
 common-carriage price regulation by mandating a price of zero for edge providers.


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 ‘reasonable charges’” is a prime “example[] of regulations that apply to Title II

 common carrier services.” Comcast, 600 F.3d at 655.

       Although the foregoing features of the Order constitute quintessential

 common-carrier regulation, the explicit nondiscrimination mandate is the icing on

 the cake. That rule provides that fixed broadband providers “shall not

 unreasonably discriminate in transmitting lawful network traffic,” Order at 88

 § 8.7 (JA__), and presumptively prohibits providers from “charging edge

 providers” for “prioritized access to end users,” id. ¶ 24 (JA__), or any “additional

 fees for faster delivery of [certain] content,” id. ¶ 128 (JA__); see id. ¶ 76 (JA__).

 This mandate regulates provider practices by governing their transmission of

 traffic and, like the no blocking rule, effectively prohibits price discrimination.

       3. The Order asserts that the statutory bans on common-carrier treatment

 are “not relevant” because broadband providers can still make “individualized

 decisions” with respect to all potential “end users” of their services. Id. ¶ 79

 (JA__). The Order’s myopic focus on retail “end users” is misplaced.

       “Neither the Commission nor the courts” have construed common carriage

 as “limited to end-users of a service.” VITELCO v. FCC, 198 F.3d 921, 930 (D.C.

 Cir. 1999) (quotation and alteration omitted); see Iowa Telecomms. Servs. v. Iowa

 Utils. Bd., 563 F.3d 743, 747, 750 (8th Cir. 2009). The FCC has “acknowledged

 that common carriers’ customers need not be ‘end users,’” VITELCO, 198 F.3d at



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 929 (citation omitted), and the Act makes clear that service offered to “classes of

 users” qualifies as common-carrier service, 47 U.S.C. § 153(53). For example, the

 FCC has long held that “[c]ommon carrier services include … exchange access

 service … offered primarily to other carriers” so they can reach end-users.

 Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the

 Communications Act of 1934, 11 F.C.C.R. 21905, 22033 (¶ 265) (1996). And

 although the Order assumes a bright line between end-users and edge providers

 here, it elsewhere explains that “[t]hese terms are not mutually exclusive.” Order

 ¶ 4 n.2 (JA__).

       Indeed, the rules invalidated in Midwest Video II did not concern providers’

 relationships with end-users. Rather, they required cable operators to provide

 channels for “third parties”—“public, educational, local governmental, and leased-

 access users … who wish to communicate by the cable medium” with end-users.

 440 U.S. at 691, 693, 700. So too here. The primary means by which the Order

 seeks to achieve “openness” is to regulate broadband providers’ relationships with

 edge providers “who wish to communicate by the [Internet] medium” with end-

 users. Id. at 700.

       The FCC tacitly recognizes this, maintaining that the rules do not amount to

 common-carrier obligations as to edge providers because they do not require

 broadband providers to “‘carry for all [edge providers] indifferently.’” Order ¶ 79



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 n.251 (JA__) (alteration in original) (stating that providers may, “under certain

 circumstances,” engage in “reasonable network management,” “reasonable

 discrimination,” and “prioritize” some traffic). But traditional common-carrier

 nondiscrimination standards have always allowed “reasonable” discrimination.

 Competitive Telecomms. Ass’n v. FCC, 998 F.2d 1058, 1064 (D.C. Cir. 1993). The

 Order does nothing more—it simply recognizes that there are “beneficial forms of

 differential treatment,” such as “reasonable network management.” Order ¶ 69

 (JA__). Moreover, a provider’s ability to perform “reasonable network

 management” merely preserves a common carrier’s traditional right to “turn[]

 away [business] either because it is not of the type normally accepted or because

 the carrier’s capacity has been exhausted.” NARUC I, 525 F.2d at 424. Even if

 providers potentially could “prioritize traffic,” that likewise “does not detract from

 ... common carrier status” because the “general commandment of indifferent

 service [may be] modified by the ... acceptance … of certain types of priority

 treatment.” NARUC II, 533 F.2d at 609.

       4. Even if the rules do not amount to full-scale common-carrier regulation,

 they at a minimum replicate key aspects of Title II by mandating carriage,

 regulating the terms thereof, and regulating carrier practices. Title II grants

 authority to require an entity to offer a service to all comers and to ban

 “discrimination” in “charges” and “practices.” 47 U.S.C. §§ 201, 202(a); see also



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 47 U.S.C. §§ 332(c)(1)(A) (authorizing common-carrier regulation of commercial

 wireless services), 335(b)(3) (requiring satellite providers to sell capacity “upon

 reasonable prices, terms, and conditions, as determined by the Commission”). But

 Congress conferred no comparable power in the provisions of the Act the FCC

 cites as supporting the rules. See infra Part II. Where Congress has chosen to use

 language in certain provisions but not others, that choice must be respected.

 Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002). The Act thus forbids

 importing the basic terms of Title II into parts of the Act where they do not appear.

 II.   THE FCC LACKS STATUTORY AUTHORITY FOR THE RULES.
       Apart from the violation of the common-carrier prohibitions, the Order fails

 to identify any statutory authority for the rules. “The FCC, like other federal

 agencies, literally has no power to act ... unless and until Congress confers power

 upon it.” Am. Library Ass’n, 406 F.3d at 708 (quotation and citation omitted).

 None of the scattered, unrelated provisions of the Act cited in the Order grants the

 FCC authority to so broadly regulate a sector of the economy as significant as the

 Internet. The Commission’s sweeping theory would allow it not only to assert

 plenary authority over broadband providers, including specialized services and

 prices for their end-user customers, but to regulate all sectors of the Internet

 economy without limit.




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       1. As an initial matter, an agency must clearly articulate the basis for its

 authority. SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947). But the FCC has

 previously admitted that it “has no express statutory authority” to regulate the

 practices of broadband providers. Comcast, 600 F.3d at 644. Thus, rather than

 rely on any clear legal foundation for the rules, the Order takes a muddled,

 scattershot approach to the issue. Order ¶¶ 115-37 (JA__-__). The Order lumps

 together approximately 24 different statutory provisions into one undifferentiated

 mass, theorizing that Congress delegated “broad authority” for the rules “in

 multiple sections” of the communications laws “viewed as a whole.” Id. ¶ 116

 (JA__). The agency’s failure to articulate any specific source of authority is

 enough to invalidate the Order. Chenery, 332 U.S. at 196-97.

       2. That failure demonstrates the fundamental problem with the Order—

 there is no statutory authority for the rules. In evaluating whether Congress

 empowered the FCC to regulate the Internet—“arguably the most important

 innovation in communications in a generation,” Comcast, 600 F.3d at 661 (citation

 omitted)—a reviewing court “must be guided to a degree by common sense as to

 the manner in which Congress is likely to delegate a policy decision of such

 economic and political magnitude to an administrative agency,” Brown &

 Williamson, 529 U.S. at 133 (citation omitted).




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       Here, it is implausible that Congress would have empowered the agency to

 “regulate an industry constituting a significant portion of the American economy…

 in so cryptic a fashion” as cobbling together so many disparate statutory

 provisions. Id. at 159-60. That the agency cannot clearly identify a delegation of

 authority over this revolutionary mode of communication is powerful evidence that

 there is none—Congress does not, after all, “hide elephants in mouseholes.”

 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). Indeed, to the extent

 Congress addressed regulation of the Internet, it provided that it should be

 “unfettered by Federal or State regulation.” 47 U.S.C. § 230(b)(2).

       Furthermore, the question whether to abandon the established “hands-off”

 policy for the Internet and enact restrictions on broadband providers (or to give the

 Commission authority to do so) has been the subject of extensive debate and

 Congressional attention. See supra p. 8. That debate—and Congress’s subsequent

 failure to enact legislation—confirms that the Commission lacks authority to

 promulgate these rules. Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (rejecting

 claim of delegated authority over issue that was “the subject of an ‘earnest and

 profound debate’ across the country”); Brown & Williamson, 529 U.S. at 160

 (deferring to “Congress’ consistent judgment to deny the FDA [its asserted]

 power”).




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       3. Nor can the FCC rely on authority “‘reasonably ancillary to the

 Commission’s effective performance of its statutorily mandated responsibilities.’”

 Am. Library Ass’n, 406 F.3d at 692. Although the Supreme Court recognized the

 concept of “ancillary authority” in cases such as United States v. Southwestern

 Cable Co., 392 U.S. 157 (1968), the Court later observed that it “‘strain[s] the

 outer limits’” of administrative law, Midwest Video II, 440 U.S. at 708 (citation

 omitted). The doctrine is also inconsistent with recent precedent.6

       Accordingly, this Court has taken a “very cautious approach in deciding

 whether the Commission [has] validly invoked its ancillary jurisdiction,” Am.

 Library Ass’n, 406 F.3d at 702, explaining that Congress has not given the FCC a

 roving, do-good mandate over communication by wire or radio, Comcast, 600 F.3d

 at 661. The FCC must justify the exercise of ancillary authority by: (1) identifying

 a substantive statutory provision to which the proposed action is ancillary, and (2)

 showing, with “substantial support in the record,” that (3) the action is “necessary”

 for the effective performance of the Commission’s “statutorily mandated




 6
       See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
 (1984) (limiting agencies to gap-filling role under direct delegations of authority);
 Brown & Williamson, 529 U.S. at 159-60 (inquiring whether Congress
 affirmatively delegated agency authority); see also Transcript of Oral Argument at
 20, Comcast Corp. v. FCC (No. 08-1291) (Randolph, J.) (noting inconsistency
 with contemporary statutory construction).



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 responsibilities” under that provision. Id. at 646, 654; NARUC II, 533 F.2d at 614-

 15.

       The FCC does not seriously attempt to satisfy this test. The Order never

 explains which of the many cited provisions provide the basis for ancillary

 authority, and studiously avoids even using that term. Further, except for the

 transparency rule, the Order does not identify which provisions support the

 exercise of ancillary authority as to any particular rule. The Commission’s

 approach thus violates Comcast’s instruction that “the permissibility of each new

 exercise of ancillary authority” must be justified “on its own terms” and that the

 critical point is “whether the particular regulation at issue” satisfies the ancillary

 authority test. 600 F.3d at 650; see NARUC II, 533 F.2d at 612.

       The Order itself demonstrates the Commission’s failure to justify the

 exercise of ancillary authority. Its stated purpose is to preserve the “openness” of

 “the Internet,” Order ¶ 43 (JA__), not to regulate the Internet as a means to

 accomplish some other, statutorily-mandated end, id. at 88 § 8.1 (JA__) (“The

 purpose of this Part is to preserve the Internet as an open platform[.]”). Thus, any

 exercise of authority here is not “really incidental to” the regulation of a service

 under “specifically delegated powers,” NARUC II, 533 F.2d at 612, or “derivative

 [in] nature,” Comcast, 600 F.3d at 654, but an assertion of power over the Internet

 for the sake of regulating the Internet itself.



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       In any event, this Court has already made clear that “rate regulation” of

 Internet services would exceed the outer boundaries of the FCC’s ancillary

 authority. Comcast, 600 F.3d at 655. The Order imposes just such regulation by

 prohibiting providers from charging edge providers for delivering traffic and

 limiting the use of two-sided pricing models to recover network costs. See supra

 pp. 17-18. If the FCC can “subject … Internet service to pervasive rate

 regulation,” there is “no reason why the Commission would have to stop there,”

 and there are “few examples of regulations that apply to Title II common carrier

 services ... that the Commission ... would be unable to impose upon Internet

 service providers.” Comcast, 600 F.3d at 655.

       4. Whether the Order is premised purely on a theory of ancillary authority,

 as the Commission’s position in Comcast seems to require, or some other theory, it

 suffers from an additional fatal flaw: the Commission’s assertion of regulatory

 power “appears to have no limiting principle.” Order at 162 (JA__) (McDowell

 Statement). Comcast, however, made clear that the FCC may not claim “plenary

 authority over” broadband providers. 600 F.3d at 654.

       Yet that is exactly what the Order does. It asserts authority to regulate

 broadband providers based upon nothing other than the agency’s notions of

 “economic and civic benefits” associated with the Internet. Order ¶ 4 (JA__); see

 e.g., id. ¶ 3 (JA__) (citing enhancement of “health, education, and the



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 environment”). As the Order itself presumes, this theory could apply not just to

 broadband service, but to all aspects of a broadband provider’s business, including

 specialized services and even retail customer prices. See supra pp. 10-11. Indeed,

 the theory would extend to all sectors of the Internet, from website, application,

 search engine, and content providers to Internet backbone companies. When the

 FCC “feels compelled to explicitly ‘decline to apply [its] rules directly to coffee

 shops, bookstores, [and] airlines,’ [that only] illustrates the broad scope of these

 rules, and the lack of any ascertainable outer limits to [its] claimed authority.”

 Order at 192 (JA__) (Baker Statement) (quoting Order ¶ 52).

       In sum, the agency’s position “if accepted … would virtually free the

 Commission from its congressional tether.” Comcast, 600 F.3d at 655. Indeed,

 such acceptance would risk ratifying a naked, unconstitutional delegation of

 legislative authority. See Whitman, 531 U.S. at 472.

       5. In any event, no provision of the Act cited in the Order can serve as a

 source of substantive regulatory power for the rules.

       Section 230. The Order first cites Section 230, Order ¶ 116 (JA__), which

 provides that “the policy of the United States” is that the Internet should be

 “unfettered by Federal or State regulation.” 47 U.S.C. § 230(b)(2). This Court

 rejected the FCC’s reliance on this provision in Comcast, explaining that it

 contains mere “statements of policy ... not delegations of regulatory authority.”



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 600 F.3d at 654. Accordingly, Section 230 provides no authority for the rules and

 instead establishes a national policy directly counter to them.

       Section 706. Next, the Order cites Section 706(a), Order ¶¶ 117-22

 (JA__-__), which provides that the FCC and state regulatory commissions “shall

 encourage” broadband deployment “by utilizing … price cap regulation, regulatory

 forbearance, measures that promote competition in the local telecommunications

 market, or other regulating methods that remove barriers to infrastructure

 investment.” 47 U.S.C. § 1302(a). As an initial matter, it is implausible to read

 Section 706(a), which applies to state regulatory commissions, as a grant of federal

 regulatory power. Regardless, the FCC does not claim that Section 706(a)

 expressly authorizes these rules. Nor, in light of the provision’s text, could it: the

 rules govern the transmission of Internet traffic, not network deployment.

       Instead, the FCC attempts a triple-cushion shot to somehow tie the rules to

 the statute: (1) the “openness” of the Internet enables the creation of “new content,

 applications, services, and devices”; (2) those “new uses of the network” will “lead

 to increased end-user demand for broadband”; and (3) that demand will “drive

 network improvements.” Order ¶ 14 (JA__). This theory fails.

       Section 706(a) directs the Commission to encourage broadband deployment,

 but only “by utilizing” regulatory authority provided elsewhere in the Act. If

 Section 706(a) were a standalone grant of authority, Congress would not have



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 directed the Commission to employ specifically-enumerated “regulating methods”

 to achieve the stated goal. 47 U.S.C. § 1302(a). Thus, Section 706(a) “delegate[s]

 no regulatory authority” to the FCC but “merely … support[s]” agency action that

 is otherwise “clearly within its statutory authority under other sections of the Act.”

 Comcast, 600 F.3d at 652, 659.7 The Commission has long understood that

 “section 706 does not constitute an independent grant of authority” but “directs the

 Commission to use the authority granted in other provisions.” Advanced Services

 Order, 13 F.C.C.R. at 24045, 24047 (¶¶ 69, 77). The Order even recognizes that

 Section 706(a) permits the Commission to act only “by any of the means listed in

 the provision”—viz., by “using its existing rulemaking, forbearance and

 adjudicatory powers.” Order ¶ 119 (JA__).

       Consequently, each of the specific regulatory methods enumerated in

 Section 706(a) is based on separate statutory authority, with its own limitations that

 the FCC must honor. Forbearance, as the Advanced Services Order recognized, is

 authorized by and thus must comply with Section 10 of the Act. 47 U.S.C. § 160.

 The FCC concedes that Section 706(a) gives it no authority to forbear “over and

 above what it otherwise possessed” and does not allow it to “trump” any limits on

 7
         Comcast stated that Section 706(a) “could at least arguably be read to
 delegate regulatory authority to the Commission,” explaining that it “does contain
 a direct mandate—the Commission ‘shall encourage’” broadband deployment.
 600 F.3d at 658. But the provision makes clear how the Commission can do so—
 viz., “by utilizing” other, specifically enumerated powers.


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 its authority under other provisions of the Act. Order ¶ 119 (JA__). “Price cap

 regulation” has long been authorized under Title II. 47 U.S.C. § 201(b); Policy &

 Rules Concerning Rates for Dominant Carriers, 4 F.C.C.R. 2873, 3295-307

 (¶¶ 881-95) (1989). Part II of Title II provides the authority and substantive

 boundaries for “measures that promote competition in the local

 telecommunications market,” 47 U.S.C. §§ 251-61, and again Section 706(a) does

 not allow the FCC to “trump” those boundaries, Order ¶ 119 (JA__). Finally, just

 as with the preceding items, the Commission must rely on an independent source

 of authority to invoke the catch-all phrase covering any “other regulating methods

 that remove barriers to investment.” 47 U.S.C. § 1302(a) (emphasis added); see

 Comcast, 600 F.3d at 659 (“‘[S]ection 706(a) does not constitute an independent

 grant of forbearance authority or of authority to employ other regulating

 methods.’” (quoting Advanced Services Order, 13 F.C.C.R. at 24044 (¶ 69))

 (emphasis in original)). This clause, standing alone, does not grant the FCC any

 authority to adopt new rules (much less unfettered authority for ones that do not

 “remove” a “barrier” to infrastructure investment but instead undermine it). Thus,

 the Order’s reliance on Section 706(a) begs the question of which underlying

 authority permits these rules.

       Moreover, the Commission’s daisy chain of speculative inferences that the

 rules will encourage deployment is contradicted by the record and common sense:



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 regulations that require providers to carry all traffic and prohibit compensation

 from edge providers for carriage will have precisely the opposite effect, as world-

 renowned economists explained below. See supra p. 7. In any case, the

 Commission cannot exponentially expand its authority under the guise of making a

 predictive judgment about the effect of the rules on deployment.

       Finally, if the FCC can justify these rules based on a series of conjectural

 links to broadband deployment, there is no stopping point to the authority it could

 assert over the Internet.8 Indeed, since the Commission’s theory is premised on the

 claim that creation of additional content, applications, and services will lead to

 greater deployment, it necessarily would allow regulation of edge providers

 (including social media), as well as all other Internet service providers such as

 backbone companies and content delivery networks (including their prices).

 Tellingly, the Commission does not disclaim authority to engage in such far-

 reaching regulation, but rather is forced to repeatedly clarify that its current rules

 do not extend to these sectors of the Internet as a matter of policy. See Order ¶¶ 47

 (JA__), 50 (JA__), 52 (JA__), 102 (JA__), 112-14 (JA__-__), 122 n.381 (JA__).




 8
       The Commission points to its subject matter jurisdiction over
 “communication by wire and radio” as a restraint on its Section 706(a) powers,
 Order ¶ 121 (JA__), but that conflates the threshold jurisdictional question with
 substantive delegated authority.


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         In any event, the FCC remains “bound by its earlier conclusion that Section

 706 grants no regulatory authority” because it has not “questioned, let alone,

 overruled” that determination. Comcast, 600 F.3d at 659. The Commission

 essentially ignored Comcast and repeated the view that construing Section 706(a)

 to provide independent authority is “consistent with” the Advanced Services Order,

 Order ¶ 119 (JA__), stating in passing that “[t]o the extent the Advanced Services

 Order can be construed as having read Section 706(a) differently, we reject that

 reading of the statute,” id. ¶ 119 n.370 (JA__). But Comcast already “construed”

 the Advanced Services Order as holding that the statute confers no stand-alone

 power. The FCC did not overrule the Advanced Services Order but simply sought

 to avoid its clear meaning, as definitively interpreted by this Court.

       Regardless, the FCC’s action, admittedly aimed at manufacturing legal

 authority post-Comcast, was not grounded in “neutral principles and a reasoned

 explanation.” FCC v. Fox Television Stations, 129 S. Ct. 1800, 1823 (2009)

 (Kennedy, J., concurring). The Order makes clear that its legal conclusions

 regarding Section 706(a) were reverse-engineered to “restore” authority that the

 Commission believes it rightly possessed “for decades before the Comcast

 decision,” Order ¶ 122 (JA__), and its footnote “rejection” of its prior reading of

 Section 706(a) was entirely perfunctory.




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       The Order also adverts to Section 706(b) as providing “additional authority”

 for the rules. Id. ¶ 123 (JA__). Section 706(b) states that the FCC shall take

 “action to accelerate deployment” of broadband to “geographical areas that are not

 served by any provider of” Internet access service. 47 U.S.C. § 1302(b)-(c). Even

 if Section 706(b) delegates substantive regulatory power, the rules exceed its scope

 because they reach beyond any particular “geographical areas that are not served”

 by any broadband provider and apply throughout the country. Section 706(b)

 suffers from the same basic flaws as Section 706(a) as a predicate for ancillary

 authority—the lack of any showing that the rules are necessary to the execution of

 duties under Section 706(b). Further, the “finding” that purportedly triggered

 Section 706(b), Order ¶ 123 n.384 (JA__), arbitrarily contravened five prior

 agency determinations of reasonable and timely deployment concluding, most

 recently, that 95% of American households have broadband access, see id. at 158-

 59 (JA__-__) (McDowell Statement) (citing Sixth Broadband Deployment Report,

 25 F.C.C.R. 9556 (2010)). The FCC certainly marshaled no record evidence that

 regulating broadband Internet access providers would “accelerate deployment” of

 broadband capability.

       Title II. Next, the Order relies upon Sections 201(b) and 251(a)(1), Order

 ¶¶ 125-26 (JA__, __), even though it does not and cannot claim express authority

 under these provisions. Section 201(b) provides the FCC with authority to regulate



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 common-carrier rates, 47 U.S.C. § 201(b), and Section 251(a)(1) imposes a duty on

 each “telecommunications carrier” to “interconnect” with other

 telecommunications carriers, 47 U.S.C. § 251(a)(1). But broadband Internet access

 service providers do not provide telecommunications service and are not

 telecommunications carriers.

        The provisions cannot support ancillary authority either. There is no

 evidence—much less substantial evidence—that the rules are necessary to ensure

 the effective performance of duties under Section 201(b). The FCC can directly

 address any concerns about unreasonable common-carrier rates by regulating such

 rates under Section 201(b), rather than indirectly doing so by regulating broadband

 providers. Further, there is no record validation of the FCC’s asserted concerns

 about VoIP blocking. The only evidence remotely bearing on VoIP is the Madison

 River example. Order ¶ 35 (JA__). But that was a dispute between a VoIP

 provider and a traditional telephone company over intercarrier compensation; it did

 not involve any broadband provider. Further, it was resolved by consent decree

 without any finding of wrongdoing, and the FCC has now resolved the

 compensation issue and requires traditional telephone companies to deliver VoIP

 traffic.9


 9
       Connect America Fund, 26 F.C.C.R. 17663, 18002-28 (¶¶ 933-71) (2011);
 Time Warner Cable Request for Declaratory Ruling, 22 F.C.C.R. 3513 (WCB
 2007).

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       Moreover, the rules sweep too broadly to be plausibly linked to any

 responsibility under Title II. Although the Commission posited a desire to prevent

 providers of “traditional voice and video services” from discriminating against

 Internet-based competitors, the rules cover “all types of Internet traffic.” Id. ¶ 48

 (JA__); id. ¶ 100 (JA__) (mobile providers cannot block “any lawful website”). If

 the FCC was truly concerned with protecting on-line voice and video services, it

 could have narrowed its rules to apply only to such services. The Order rejects

 that option as undesirable policy. Id. ¶ 124 (JA__). The Commission’s policy

 views cannot expand its authority.

       Finally, there is no evidence that the rules are necessary to the effective

 performance of the FCC’s responsibility under Section 251(a)(1) to ensure

 interconnection among networks that provide “telecommunications services.”

 Those networks are already interconnected, Verizon Comments at 102-03

 (JA__-__), and the FCC does not claim otherwise. Accordingly, there is not a

 shred of evidence that any “traditional telephone customer” has been unable to

 enjoy “the intended benefits of telecommunications interconnection under Section

 251(a)(1).” Order ¶ 126 (JA__). Moreover, Section 251(a)(1) cannot be a source

 of ancillary authority to protect VoIP providers from supposed blocking of calls by

 a telecommunications carrier, as the Order hypothesizes; VoIP has not been

 classified as a telecommunications service, and such blocking, by definition,



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 therefore would not “interfere with interconnection between two

 telecommunications carriers.” Id. (emphasis added). The Commission thus

 effectively claims that it has ancillary authority to regulate a service over which it

 has no authority (Internet access service) to protect another service the terms of

 which it does not regulate (VoIP), based on unsupported claims that VoIP will

 “contribute to the market discipline” of common-carrier rates. Id. ¶ 125 (JA__).

       Title VI. The Order next cites Sections 616 and 628, id. ¶¶ 129-32

 (JA__- __), but again makes no assertion of express authority. Nor could it. These

 provisions authorize regulation of only certain conduct by “cable operators” and/or

 “multichannel video programming distributors” (“MVPDs”). 47 U.S.C. §§ 536,

 548(b). Entities are considered cable operators or MVPDs subject to regulation

 under Title VI only when they are providing “cable service” via a “cable system”

 or making available a competing service that provides subscribers with “multiple

 channels of video programming,” id. §§ 522(5), (13); see id. § 522(4), not when

 they are providing other services such as broadband Internet access.

 Accordingly, the Commission has found that “cable modem service”—the

 broadband Internet access service offering of traditional cable operators who also

 provide “cable service”—“is not … subject to Title VI” because it does not fall

 within the statutory definition of a “cable service.” Cable Modem Order, 17

 F.C.C.R. at 4838 (¶ 68); see id. at 4832-38 (¶¶ 60-68); see also Comcast, 600 F.3d



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 at 649 (noting that classification of cable Internet service “as an ‘information

 service’” “removed [it] from Title II and Title VI oversight”).

       Sections 616 and 628 do not provide any ancillary authority here because the

 FCC has not mustered substantial evidence that the rules are “necessary” for the

 effective performance of any statutorily-mandated responsibility thereunder. The

 FCC avers loosely that the rules “further our mandate under Section 628” because

 “MVPDs that offer broadband service have the opportunity and incentive to

 impede DBS providers and other competing MVPDs” from transmitting video

 programming online. Order ¶¶ 130-31 (JA__-__). But the FCC can address

 directly any such action by cable operators or MVPDs acting as such, and the

 Order does not point to a single instance of an entity acting as a broadband

 provider impeding an MVPD from delivering its services to consumers. And as

 with Title II, the rules reach far more broadly than the particular online service

 (here, video programming) that is the object of regulatory concern.

       Title III. The FCC next relies on its purported “public interest” authority

 under Title III’s spectrum licensing provisions. Id. ¶¶ 133-35 (JA__-__). There is

 no support for construing those provisions to authorize the rules.

       In Title III, Congress established a federal licensing scheme over radio

 services. FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 474 (1940); NBC v.

 United States, 319 U.S. 190, 210-16 (1943). To implement this scheme, Congress



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 vested the FCC with specific authority relating to issues such as preventing

 interference and assigning classes of stations to particular frequency bands. See

 generally 47 U.S.C. § 303.10 In exercising its Title III authority, the FCC is to

 promote the “public interest, convenience, and necessity.” 47 U.S.C. § 316(a)(1).

 But, as this Court explained, “[t]he FCC cannot act in the ‘public interest’ if the

 agency does not otherwise have the authority to promulgate the regulations at

 issue.” MPAA, 309 F.3d at 806.

       Thus, the requirement to act in the public interest is “not to be interpreted as

 setting up a standard so indefinite as to confer an unlimited power.” NBC, 319

 U.S. at 216. Indeed, construing Title III to afford the FCC unbounded authority to

 impose or modify conditions on spectrum licenses so long as they satisfied some

 loose conception of the public interest would render the substantive grants of

 authority in Title III mere surplusage. See Qi-Zhuo v. Meissner, 70 F.3d 136, 139

 (D.C. Cir. 1995). Instead, a license condition or regulation must be tied to the

 substantive grants of authority found elsewhere in Title III.

       The Order does not explain how the rules are tied to any such grant of

 authority. Instead, it makes the cursory assertion that the FCC possessed authority

 to adopt the rules because they “advance the public interest in innovation and

 10
       Congress’s grant of Title II authority over commercial mobile radio services
 in Section 332(c)(1), see supra pp. 4, 21, confirms that authority akin to that
 contained in Sections 201 and 202 does not otherwise exist in Title III.


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 investment.” Order ¶ 134 (JA__). But that claim confuses the standard by which

 the FCC must exercise its enumerated authority with the antecedent grant of such

 authority, and has been squarely rejected by this Court. MPAA, 309 F.3d at 806.

       Furthermore, the licensing provisions grant the FCC “no supervisory control

 of the programs, of business management or of policy.” Sanders Bros., 309 U.S. at

 475. Because the FCC lacks authority to “determine the validity of contracts

 between licensees and others,” “the imposition of [licensing] conditions cannot

 directly affect the applicant’s responsibilities to a third party dealing with the

 applicant.” Regents of Univ. Sys. v. Carroll, 338 U.S. 586, 600, 602 (1950); see

 Environmentel, LLC v. FCC, 661 F.3d 80, 85 (D.C. Cir. 2011). The Order reaches

 well beyond the outer limits of Title III because the rules directly “regulate the

 business” of wireless broadband providers, Sanders Bros., 309 U.S. at 475, by

 controlling commercial arrangements for the carriage of Internet traffic, see Order

 ¶ 23 (JA__) (discussing “contract” between broadband providers and edge

 providers prohibited by the rules).

       None of the particular provisions of Title III cited by the Order confers the

 necessary authority. The Commission points to Section 316, Order ¶ 133 (JA__),

 which states that “[a]ny station license or construction permit may be modified by

 the Commission” under a “public interest” standard. 47 U.S.C. § 316(a)(1). The

 use of this authority historically has been limited to technical license changes



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 regarding interference and basic spectrum management. See, e.g., FCC v.

 NBC(KOA), 319 U.S. 239 (1943); Western Broad. Co. v. FCC, 674 F.2d 44 (D.C.

 Cir. 1982). The Order represents an unprecedented exercise of license-

 modification authority because there is no such nexus to spectrum management. If

 the Commission could issue any rules it deemed in the public interest and compel

 licensees to comply with them simply by modifying their licenses, it is difficult to

 imagine what sort of obligation the FCC would be unable to impose on wireless

 licensees.

       Whatever the outer limits of the FCC’s authority under Section 316, it is

 clear that the agency’s license modification power does not encompass the ability

 to “fundamental[ly] change” the license’s terms. Cmty. Television, Inc. v. FCC,

 216 F.3d 1133, 1141 (D.C. Cir. 2000); see MCI, 512 U.S. at 228. The

 “introduction of a whole new regime of regulation,” id. at 234—here, the issuance

 of unprecedented rules regulating numerous aspects of wireless Internet service—

 is a dramatic change to wireless licenses that cannot be sustained. And interpreting

 Section 316 to permit the FCC to induce parties to spend billions of dollars in

 spectrum auctions and then spring new restrictions on them that significantly limit

 their ability to make productive use of purchased spectrum would go “beyond the

 meaning that the statute can bear.” Id. at 231-32; U.S. AirWaves, Inc. v. FCC, 232




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 F.3d 227, 235 (D.C. Cir. 2000) (“[A]n agency cannot, in fairness, radically change

 the terms of an auction after the fact.”).11

       Any claim that the cited Title III sections provide a basis for asserting

 ancillary authority must also fail. The FCC suggests that the rules are needed to

 ensure broadcasters can “provid[e] audio and video content on the Internet,” Order

 ¶ 128 (JA__), but this “is far from the kind of tight ancillary nexus” that courts

 have required, id. at 165 (JA__) (McDowell Statement); see, e.g., Comcast, 600

 F.3d at 659-60. Again, the FCC relies upon broadband providers’ alleged

 “incentive and ability” to block or degrade broadcast content distributed over the

 Internet, Order ¶ 128 (JA__), but there is no evidence of such misconduct,

 particularly by wireless providers. Regardless, the FCC has not shown that its

 ability to perform any Title III licensing responsibility is jeopardized by such

 conduct.

       Sections 4(k) and 218. Finally, the Order cites Sections 4(k) and 218 for

 the transparency rule. Id. ¶¶ 136-37 (JA__-__). Although Comcast suggests that



 11
        Sections 301 and 304, Order ¶ 133 (JA__), which explain the purpose of
 Title III and require licensees to waive claims to particular frequencies, provide no
 basis for the rules. Neither does Section 303(g), id. ¶ 128 (JA__), which simply
 directs the FCC to “generally encourage the larger and more effective use of radio
 in the public interest,” 47 U.S.C. § 303(g). Section 309, Order ¶ 133 (JA__), is
 inapposite; it authorizes the Commission to award licenses and issue rules for
 spectrum auctions. 47 U.S.C. § 309(a), (j)(3).



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 these information-collection and reporting obligations, see 47 U.S.C. §§ 154(k),

 218, could support ancillary authority, 600 F.3d at 659, the transparency rule does

 not relate to any actual reporting or information collection requirement. Its

 primary stated purpose is, instead, to advance the FCC’s “openness” policies.

 Order ¶ 53 (JA__).

        6. The doctrine of constitutional avoidance counsels strongly against any

 finding of statutory authority for the rules because they present serious

 constitutional problems, such as unconstitutional delegation, and indeed violate the

 First and Fifth Amendments. See infra Section III; see also supra p. 27. To the

 extent there is any doubt about the FCC’s lack of authority here, the avoidance

 canon must tip the balance. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf

 Coast Bldg. & Constr. Trade Council, 485 U.S. 568, 570-73 (1988); Bell Atl. Tel.

 Cos. v. FCC, 24 F.3d 1441, 1445 (D.C. Cir. 1994).

 III.   THE ORDER VIOLATES THE FIRST AND FIFTH AMENDMENTS.
        1. The First Amendment protects not only traditional speakers, but other

 participants in the “communication of ideas.” Los Angeles v. Preferred Commc’ns,

 Inc., 476 U.S. 488, 494 (1986). For example, it protects those transmitting the

 speech of others, and those who “exercis[e] editorial discretion” in selecting which

 speech to transmit and how to transmit it. Turner Broad. Sys., Inc. v. FCC, 512

 U.S. 622, 636 (1994) (“Turner I”) (quotation omitted). Broadband providers



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 engage in and transmit speech, and the rules—which limit broadband providers’

 own speech and compel carriage of others’ speech—cannot survive scrutiny.

       Broadband providers transmit their own speech both by developing their

 own content and by partnering with other content providers and adopting that

 speech as their own. For example, they develop video services, which draw

 information from, and are then made available over, the Internet. Many also select

 or create content for their own over-the-top video services or offer applications that

 provide access to particular content. They also transmit the speech of others: each

 day millions of individuals use the Internet to promote their own opinions and

 ideas and to explore those of others, and broadband providers convey those

 communications.12

       In performing these functions, broadband providers possess “editorial

 discretion.” Just as a newspaper is entitled to decide which content to publish and

 where, broadband providers may feature some content over others. Although

 broadband providers have generally exercised their discretion to allow all content

 in an undifferentiated manner, Order ¶ 14 (JA__), they nonetheless possess

 discretion that these rules preclude them from exercising. For example, they could



 12
       The FCC asserts that broadband providers are mere “conduits for speech.”
 Order ¶ 141 (JA__). Yet cable operators enjoy First Amendment protection even
 though they “function[]” as “conduit[s] for the speech of others.” Turner I, 512
 U.S. at 628-29.


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 distinguish their own content from that of other speakers or offer that capability to

 others. In fact, some types of speech, such as live streaming high-definition video,

 could benefit from (or may only be available with) differential treatment, such as

 prioritization. Broadband providers could also give differential pricing or priority

 access to their over-the-top video services or other applications they provide, or

 otherwise feature that content. See Ill. Bell Tel. Co. v. Village of Itasca, 503

 F. Supp. 2d 928, 948-49 (N.D. Ill. 2007); Comcast Cablevision of Broward Cnty.,

 Inc. v. Broward Cnty., 124 F. Supp. 2d 685, 692 (S.D. Fla. 2000). Indeed, the

 FCC’s concern that broadband providers will differentiate among various content

 presumes that they will exercise editorial discretion. See, e.g., Order ¶¶ 21-23

 (JA__-__).

       The Order’s broad “prophylactic rules” infringe broadband providers’

 protected speech rights. They strip providers of control over which speech they

 transmit and how they transmit it, and they compel the carriage of others’ speech.

 They also limit the means by which providers can secure additional revenue, which

 impairs their ability to deploy new networks and capabilities (or to expand the size

 of existing ones), thereby limiting their ability to speak and deliver speech. And

 they make clear that even “specialized services,” such as video services, will be

 subject to the Order’s restrictions if the FCC decides that such services are

 “retarding the growth of ... broadband Internet access service,” or if broadband



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 providers merely “advertis[e]” these services to consumers as “Internet” services,

 id. ¶ 114 (JA__), thus constraining their marketing speech as well.

       The Order is thus at the very least subject to intermediate scrutiny.13 Under

 that standard, the Order must “further[] an important or substantial governmental

 interest ... unrelated to the suppression of free expression” and the “incidental

 restriction on alleged First Amendment freedoms [must be] no greater than is

 essential to the furtherance of that interest.” United States v. O’Brien, 391 U.S.

 367, 377 (1968). It must not “burden substantially more speech than is necessary

 to further the government’s legitimate interests.” Turner I, 512 U.S. at 662

 (quotation omitted).

       The government bears the burden to establish that intermediate scrutiny is

 satisfied. E.g., id. at 665 (plurality opinion). The Order fails to meet that burden.

 A single paragraph, replete with conclusory assertions, asserts that the rules are

 sufficiently tailored. Order ¶ 148 (JA__). The Order nowhere explains why these

 particular regulations are necessary to address the hypothetical problems identified,

 or presents evidence of their effectiveness.




 13
         Because the Order treats broadband providers differently than other
 similarly-situated speakers (like content providers), Order ¶¶ 50-51 (JA__-__),
 strict scrutiny applies, Turner I, 512 U.S. at 659. The FCC did not even attempt to
 satisfy that standard.


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       Regardless, the rules fail both prongs of the tailoring inquiry. First, the FCC

 has identified no “important or substantial” governmental interest. O’Brien, 391

 U.S. at 377. “[T]he mere abstract assertion of a substantial governmental interest,

 standing alone, is insufficient to justify the subordination of First Amendment

 freedoms.” Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1454 (D.C. Cir. 1985).

 The government must “do more than simply ‘posit the existence of the disease

 sought to be cured’”; it “must demonstrate that the recited harms are real.” Turner

 I, 512 U.S. at 664 (plurality opinion) (quoting Quincy Cable, 768 F.2d at 1455).

 The concerns that justified the must-carry provisions at issue in Turner do not

 justify the compulsory-carriage obligations adopted here: given the competitive

 choices available to consumers, broadband providers do not exercise “bottleneck

 monopoly control.” Turner I, 512 U.S. at 659; Turner Broad. Sys. v. FCC, 520

 U.S. 180, 197 (1997) (“Turner II”).

       Moreover, in Turner II, the Court relied substantially on the “deference

 [that] must be accorded to [Congress’s] findings as to the harm to be avoided and

 to the remedial measures adopted for that end.” Id. at 196. There, Congress

 considered extensive evidence, including evidence of “considerable and growing

 market power,” and concluded that “a real threat justified enactment of the must-

 carry provisions.” Id. at 196-97. In addition, there was evidence that cable

 operators were “tak[ing] actions adverse to local broadcasters,” causing broadcast



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 stations to go bankrupt, id. at 202, 209. Here, by contrast, the FCC is acting alone,

 without evidence of an actual problem. Indeed, the FCC expressly declined to

 determine whether broadband providers possess market power and acknowledges

 that the problems it fears are hypothetical. Order ¶ 24 (JA__) (“broadband

 providers have not historically imposed ... fees” on edge providers for “access or

 prioritized access to end users”); see id. ¶ 62 (JA__).

       To be sure, the FCC points to a handful of supposed “instances of harmful

 practices,” id. ¶ 147 (JA__), but the Order was motivated not by broadband

 providers’ current practices, but by the FCC’s view of their theoretical incentives

 and ability to engage in practices that the FCC disfavors, id. ¶ 12 (JA__) (noting

 “risk of harmful conduct”); id. ¶ 38 (JA__) (noting providers’ “increasing ability to

 [interfere with the open Internet] in the future”). The mere potential for harm,

 however, is not the same as actual harm. See Turner I, 512 U.S. at 664; Quincy

 Cable, 768 F.2d at 1454-59.

       Second, even if the FCC could demonstrate a substantial governmental

 interest, the Order is both over- and under-inclusive. It is over-inclusive because it

 is far broader than necessary “to further [any government] interest.” Turner I, 512

 U.S. at 662. To start, the FCC did not even attempt to minimize the Order’s

 speech burdens, which itself warrants invalidation. Cf. Time Warner Entmt. Co. v.

 FCC, 56 F.3d 151, 185-86 (D.C. Cir. 1995). The rules are also far broader than



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 required under the FCC’s own rationale: the rules are admittedly “prophylactic,”

 Order ¶ 12 (JA__), and they apply to all Internet traffic even though the FCC

 grasps for statutory authority in provisions related to regulated video and voice

 services.

       The Order is under-inclusive because it only applies to a subset of speakers

 and excludes other participants in the Internet ecosystem, including search portals

 and app store operators who are similarly able to serve as “gatekeepers” and

 possess the same theoretical abilities and incentives to restrict access. See supra p.

 7; see also City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (explaining that “the

 notion that a regulation of speech may be impermissibly underinclusive is firmly

 grounded in basic First Amendment principles”).

       Apparently aware that it has identified no actual problem and that its

 solution is vastly overbroad, the FCC contends that the Order is nevertheless

 constitutional because the Commission’s “predictive judgments as to the

 development of a problem and likely injury to the public interest are entitled to

 great deference.” Order ¶ 147 (JA__); id. ¶ 41 (JA__). But this is not true under

 the First Amendment, which requires the “government … to show that its

 restriction of speech is narrowly tailored to an important governmental interest,

 rather than rely on the deference we generally afford agencies.” Cablevision Sys.

 Corp. v. FCC, 597 F.3d 1306, 1311 (D.C. Cir. 2010).



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       2. The Order also violates the Fifth Amendment. It grants the equivalent of

 a permanent easement on private broadband networks for the use of others without

 just compensation—a per se taking. Loretto v. Teleprompter Manhattan CATV

 Corp., 458 U.S. 419 (1982). “In essence,” edge providers “receive an unlimited,

 continuous right of access to broadband providers’ private property for free,”

 which “allows them to physically invade broadband networks with their electronic

 signals and permanently occupy portions of network capacity.” D. Lyons, Virtual

 Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation, 86

 Notre Dame. L. Rev. 65, 93 (2011). The resulting occupation is physical, for

 increases in network traffic consume available capacity and ultimately require the

 acquisition or construction of additional capacity.

       Even without a physical occupation, the rules constitute a regulatory taking

 because they “interfere[] with [broadband providers’] distinct investment-backed

 expectations.” Penn Cent. Trans. Co. v. City of New York, 438 U.S. 104, 124

 (1978). Providers have invested billions in broadband infrastructure on the

 understanding that they can manage access to network facilities and use those

 facilities to offer the products that their customers want. These rules sharply curb

 providers’ ability to do so, thereby frustrating their substantial and reasonable

 investment-backed expectations.




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 IV.   THE ORDER IS ARBITRARY AND CAPRICIOUS.
       Foremost, the record below contains no evidence of a problem in need of

 industry-wide regulation. Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831,

 843 (D.C. Cir. 2006). Again, the FCC’s stated policy concerns are hypothetical

 and based not on broadband providers’ actual practices but the agency’s view of

 their theoretical incentives and abilities. Indeed, the Order frankly acknowledges

 that the Internet presently “is a level playing field,” that “consumers can make

 their own choices about what applications and services to use,” “are free to decide

 what content they want to access, create, or share with others,” and that open

 competition exists. Order ¶ 3 (JA__) (emphasis added).

       Even while emphasizing the “prophylactic” nature of the rules, the FCC

 attempted to amass a supposed industry-wide “record of abuse,” Nat’l Fuel, 468

 F.3d at 839, based on four isolated incidents of alleged blocking over a period of

 six years—during which time end-users successfully accessed the Internet content,

 applications, and services of their choice literally billions of times. Order ¶ 35

 (JA__). None of these examples, other than the vacated Comcast Order, which is a

 legal nullity, involved any adjudicated findings of misconduct, and all were

 quickly resolved in the marketplace. Beyond this handful of assertions, the Order

 discusses “additional allegations” of such conduct but expressly declines to decide

 “whether any of these practices violated open Internet principles.” Id. ¶ 36 (JA__).



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       Even if this handful of incidents constituted legitimate evidence of actual

 misconduct, the FCC may not impose an “industry-wide solution for a problem

 that exists only in isolated pockets.” Associated Gas Distribs. v. FERC, 824 F.2d

 981, 1019 (D.C. Cir. 1987); cf. Fox Television Stations, Inc. v. FCC, 280 F.3d

 1027, 1051 (D.C. Cir. 2002) (vacating “prophylactic rule” because a “single

 incident ... is just not enough to suggest an otherwise significant problem”).

       Incapable of identifying any existing problem, the Order’s “repeated

 fallback is that network operators have incentives to act badly,” Order at 182

 (JA__) (Baker Statement), but “there is no factual foundation” for presuming “a

 malign intent on the part of broadband providers,” id. The most the agency could

 say was that providers “potentially face ... incentives to reduce the current

 openness of the Internet,” id. ¶ 21 (JA__), but the Order contradicts itself. It finds

 that broadband providers today generally provide subscribers access to all lawful

 content, id. ¶ 141 (JA__), and have strong economic incentives to continue to do

 so, id. ¶ 14 (JA__). Under the APA, the FCC may not act based on pure

 speculation. Horsehead Res. Dev. Co. v. Browner, 16 F.3d 1246, 1269 (D.C. Cir.

 1994) (per curiam).

       The record not only fails to evince any problem sufficient to justify the rules,

 it demonstrates that the rules will harm innovation and deter investment by

 increasing costs, foreclosing potential revenue streams, and restricting providers’



                                           51
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 ability to meet consumers’ evolving needs, especially in the wireless context. See

 supra pp. 6-7; see also Declaration of Gary S. Becker & Dennis W. Carlton

 ¶¶ 66-69 (JA__-__). Even the Justice Department and Federal Trade Commission

 cautioned that broadband regulation could “stifl[e] the infrastructure investments

 needed to expand broadband access.” Ex Parte Submission of the U.S. DOJ at 28,

 Docket No. 09-51 (Jan. 4, 2010) (JA__); FTC, Staff Report: Broadband

 Connectivity Competition Policy at 11 (2007) (JA__). The FCC’s conclusion that

 “open Internet rules will increase incentives to invest in broadband infrastructure,”

 Order ¶ 40 (JA__), thus “runs counter to the evidence,” Nat’l Fuel, 468 F.3d at 839

 (quotation omitted).

         The Order is also arbitrary and capricious because the rules discriminate

 between broadband providers subject to the rules and other players in the Internet

 ecosystem not so restrained. Order ¶¶ 55-61 (JA__-__). The latter entities have

 the same supposed incentives and abilities to engage in the behavior at which the

 rules are aimed, and distinctions among Internet players are increasingly illusory.

 Burlington N. & Santa Fe Ry. Co. v. Surface Transp. Bd., 403 F.3d 771, 777 (D.C.

 Cir. 2005). Finally, the FCC departed, without acknowledgement, from its

 precedent establishing a deregulatory framework for broadband. Fox, 129 S. Ct. at

 1811.




                                           52
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                                  CONCLUSION

       Appellants respectfully request that the Court reverse and vacate the Order.

 Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51

 (D.C. Cir. 1993); Midwest Video II, 440 U.S. at 695, 708 n.18 (affirming decision

 “set[ting] aside” rules); see Comcast, 600 F.3d at 660 (vacating Comcast Order).

 Vacatur is especially warranted because this is the Commission’s second attempt to

 establish authority in this area. See Comcast Corp. v. FCC, 579 F.3d 1, 9-10 (D.C.

 Cir. 2009).




                                         53
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                                     Respectfully submitted,

                                          /s/ Helgi C. Walker
                                     By: ________________________
 Walter E. Dellinger                    Helgi C. Walker*
 Brianne Gorod                          Eve Klindera Reed
 Anton Metlitsky                        William S. Consovoy
 O’MELVENY & MYERS LLP                  Brett A. Shumate
 1625 Eye Street, NW                    WILEY REIN LLP
 Washington, DC 20006                   1776 K Street, NW
 TEL: (202) 383-5300                    Washington, DC 20006
                                        TEL: (202) 719-7000
 Michael E. Glover                      E-MAIL: hwalker@wileyrein.com
 William H. Johnson
 VERIZON                                 Samir C. Jain
 1320 North Courthouse Road              WILMER CUTLER PICKERING
 9th Floor                               HALE AND DORR LLP
 Arlington, VA 22201                     1875 Pennsylvania Ave., NW
 TEL: (703) 351-3060                     Washington, DC 20006
                                         TEL: (202) 663-6083

                                         Attorneys for Verizon

                                         *Counsel of Record



 Stephen B. Kinnaird*                    Carl W. Northrop
 PAUL, HASTINGS, JANOFSKY                Michael Lazarus
 & WALKER LLP                            Andrew Morentz
 875 15th Street, NW                     TELECOMMUNICATIONS LAW
 Washington, DC 20005                    PROFESSIONALS PLLC
 TEL: (202) 551-1842                     875 15th Street, NW, Suite 750
                                         Washington, DC 20005
                                         TEL: (202) 789-3120
USCA Case #11-1355     Document #1381604      Filed: 07/02/2012   Page 85 of 116


 Mark A. Stachiw
 General Counsel, Secretary
 & Vice Chairman
 METROPCS COMMUNICATIONS, INC.
 2250 Lakeside Blvd.
 Richardson, TX 75082                      Attorneys for MetroPCS
 TEL: (214) 570-4877                       Communications, Inc. and its FCC-
                                           licensed affiliates

 Dated: July 2, 2012                       *Counsel of Record
USCA Case #11-1355      Document #1381604          Filed: 07/02/2012       Page 86 of 116


                       CERTIFICATE OF COMPLIANCE
       Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify the following:

       This brief complies with the type-volume limitation of Rule 32(a)(7)(B) of

 the Federal Rules of Appellate Procedure and D.C. Circuit Rule 32(a)(3)(B)

 because this brief contains 11,931 words, excluding the parts of the brief exempted

 by Rule 32(a)(7)(B)(iii) of the Federal Rules of Appellate Procedure and Circuit

 Rule 32(a)(2).

       This brief complies with the typeface requirements of Rule 32(a)(5) of the

 Federal Rules of Appellate Procedure and the type style requirements of Rule

 32(a)(6) of the Federal Rules of Appellate Procedure because this brief has been

 prepared in a proportionally spaced typeface using the 2003 version of Microsoft

 Word in 14 point Times New Roman.




                                            /s/ Helgi C. Walker
                                       _____________________________
USCA Case #11-1355   Document #1381604   Filed: 07/02/2012   Page 87 of 116




                       STATUTORY ADDENDUM
USCA Case #11-1355   Document #1381604   Filed: 07/02/2012   Page 88 of 116


                         TABLE OF CONTENTS

                                                                  PAGE

 47 U.S.C. § 153.………………………………………………..……….………….3

 47 U.S.C. § 154……………………………………………………..….…….…… 4

 47 U.S.C. § 201.……………………………………………………..…….……… 4

 47 U.S.C. § 202.……………………………………………………..…….……….5

 47 U.S.C. § 218………………………………………………..…….………..……6

 47 U.S.C. § 230 …………………………………………………..…….………….6

 47 U.S.C. § 251…………………………………………………..…….…………..7

 47 U.S.C. § 301….…………………………………………………..…….……….7

 47 U.S.C. § 303.…………………………………………………..…….………….8

 47 U.S.C. § 304…………………………………………………..…….…………16

 47 U.S.C. § 309…………………………………………………..…….…………16

 47 U.S.C. § 316.…………………………………………………..…….………...18

 47 U.S.C. § 332.………………………………………………………….…..…...18

 47 U.S.C. § 402…………..…………………………………………...…………..20

 47 U.S.C. § 536…………..…………………………………………...…………..21

 47 U.S.C. § 548..…………..…………………………………………...…………22

 47 U.S.C. § 1302…………..…………………………………………...…………23

 47 C.F.R. § 8.1…………..…………………………………………...……………24



                                    1
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 47 C.F.R. § 8.3…………..…………………………………………...……………24

 47 C.F.R. § 8.5…………..…………………………………………...……………24

 47 C.F.R. § 8.7…………..…………………………………………...……………25

 47 C.F.R. § 8.9…………..…………………………………………...……………25

 47 C.F.R. § 8.11…………..…………………………………………...…………..25




                                    2
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 47 U.S.C. § 153

 For the purposes of this chapter, unless the context otherwise requires—

 ***

 (24) Information service

 The term “information service” means the offering of a capability for generating,
 acquiring, storing, transforming, processing, retrieving, utilizing, or making
 available information via telecommunications, and includes electronic publishing,
 but does not include any use of any such capability for the management, control, or
 operation of a telecommunications system or the management of a
 telecommunications service.

 ***

 (50) Telecommunications

 The term “telecommunications” means the transmission, between or among points
 specified by the user, of information of the user's choosing, without change in the
 form or content of the information as sent and received.

 (51) Telecommunications carrier

 The term “telecommunications carrier” means any provider of telecommunications
 services, except that such term does not include aggregators of telecommunications
 services (as defined in section 226 of this title). A telecommunications carrier shall
 be treated as a common carrier under this chapter only to the extent that it is
 engaged in providing telecommunications services, except that the Commission
 shall determine whether the provision of fixed and mobile satellite service shall be
 treated as common carriage.

 ***

 (53) Telecommunications service

 The term “telecommunications service” means the offering of telecommunications
 for a fee directly to the public, or to such classes of users as to be effectively
 available directly to the public, regardless of the facilities used.

                                           3
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 47 U.S.C. § 154

 ***

 (k) Annual reports to Congress

 The Commission shall make an annual report to Congress, copies of which shall be
 distributed as are other reports transmitted to Congress. Such reports shall contain-
 -

 (1) such information and data collected by the Commission as may be considered
 of value in the determination of questions connected with the regulation of
 interstate and foreign wire and radio communication and radio transmission of
 energy;

 (2) such information and data concerning the functioning of the Commission as
 will be of value to Congress in appraising the amount and character of the work
 and accomplishments of the Commission and the adequacy of its staff and
 equipment;

 (3) an itemized statement of all funds expended during the preceding year by the
 Commission, of the sources of such funds, and of the authority in this chapter or
 elsewhere under which such expenditures were made; and

 (4) specific recommendations to Congress as to additional legislation which the
 Commission deems necessary or desirable, including all legislative proposals
 submitted for approval to the Director of the Office of Management and Budget.

 ***

 47 U.S.C. § 201

 (a) It shall be the duty of every common carrier engaged in interstate or foreign
 communication by wire or radio to furnish such communication service upon
 reasonable request therefor; and, in accordance with the orders of the Commission,
 in cases where the Commission, after opportunity for hearing, finds such action
 necessary or desirable in the public interest, to establish physical connections with
 other carriers, to establish through routes and charges applicable thereto and the



                                           4
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 divisions of such charges, and to establish and provide facilities and regulations for
 operating such through routes.

 (b) All charges, practices, classifications, and regulations for and in connection
 with such communication service, shall be just and reasonable, and any such
 charge, practice, classification, or regulation that is unjust or unreasonable is
 declared to be unlawful: Provided, That communications by wire or radio subject
 to this chapter may be classified into day, night, repeated, unrepeated, letter,
 commercial, press, Government, and such other classes as the Commission may
 decide to be just and reasonable, and different charges may be made for the
 different classes of communications: Provided further, That nothing in this chapter
 or in any other provision of law shall be construed to prevent a common carrier
 subject to this chapter from entering into or operating under any contract with any
 common carrier not subject to this chapter, for the exchange of their services, if the
 Commission is of the opinion that such contract is not contrary to the public
 interest: Provided further, That nothing in this chapter or in any other provision of
 law shall prevent a common carrier subject to this chapter from furnishing reports
 of positions of ships at sea to newspapers of general circulation, either at a nominal
 charge or without charge, provided the name of such common carrier is displayed
 along with such ship position reports. The Commission may prescribe such rules
 and regulations as may be necessary in the public interest to carry out the
 provisions of this chapter.

 47 U.S.C. § 202

 (a) Charges, services, etc.

 It shall be unlawful for any common carrier to make any unjust or unreasonable
 discrimination in charges, practices, classifications, regulations, facilities, or
 services for or in connection with like communication service, directly or
 indirectly, by any means or device, or to make or give any undue or unreasonable
 preference or advantage to any particular person, class of persons, or locality, or to
 subject any particular person, class of persons, or locality to any undue or
 unreasonable prejudice or disadvantage.

 ***




                                           5
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 47 U.S.C. § 218

 The Commission may inquire into the management of the business of all carriers
 subject to this chapter, and shall keep itself informed as to the manner and method
 in which the same is conducted and as to technical developments and
 improvements in wire and radio communication and radio transmission of energy
 to the end that the benefits of new inventions and developments may be made
 available to the people of the United States. The Commission may obtain from
 such carriers and from persons directly or indirectly controlling or controlled by, or
 under direct or indirect common control with, such carriers full and complete
 information necessary to enable the Commission to perform the duties and carry
 out the objects for which it was created.

 47 U.S.C. § 230

 (a) Findings

 The Congress finds the following:

 (1) The rapidly developing array of Internet and other interactive computer
 services available to individual Americans represent an extraordinary advance in
 the availability of educational and informational resources to our citizens.

 (2) These services offer users a great degree of control over the information that
 they receive, as well as the potential for even greater control in the future as
 technology develops.

 (3) The Internet and other interactive computer services offer a forum for a true
 diversity of political discourse, unique opportunities for cultural development, and
 myriad avenues for intellectual activity.

 (4) The Internet and other interactive computer services have flourished, to the
 benefit of all Americans, with a minimum of government regulation.

 (5) Increasingly Americans are relying on interactive media for a variety of
 political, educational, cultural, and entertainment services.

 (b) Policy

 It is the policy of the United States--

                                           6
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 (1) to promote the continued development of the Internet and other interactive
 computer services and other interactive media;

 (2) to preserve the vibrant and competitive free market that presently exists for the
 Internet and other interactive computer services, unfettered by Federal or State
 regulation;

 (3) to encourage the development of technologies which maximize user control
 over what information is received by individuals, families, and schools who use the
 Internet and other interactive computer services;

 (4) to remove disincentives for the development and utilization of blocking and
 filtering technologies that empower parents to restrict their children's access to
 objectionable or inappropriate online material; and

 (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish
 trafficking in obscenity, stalking, and harassment by means of computer.

 ***

 47 U.S.C. § 251

 (a) General duty of telecommunications carriers

 Each telecommunications carrier has the duty--

 (1) to interconnect directly or indirectly with the facilities and equipment of other
 telecommunications carriers; and

 (2) not to install network features, functions, or capabilities that do not comply
 with the guidelines and standards established pursuant to section 255 or 256 of this
 title.

 ***

 47 U.S.C. § 301

 It is the purpose of this chapter, among other things, to maintain the control of the
 United States over all the channels of radio transmission; and to provide for the use

                                           7
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 of such channels, but not the ownership thereof, by persons for limited periods of
 time, under licenses granted by Federal authority, and no such license shall be
 construed to create any right, beyond the terms, conditions, and periods of the
 license. No person shall use or operate any apparatus for the transmission of
 energy or communications or signals by radio (a) from one place in any State,
 Territory, or possession of the United States or in the District of Columbia to
 another place in the same State, Territory, possession, or District; or (b) from any
 State, Territory, or possession of the United States, or from the District of
 Columbia to any other State, Territory, or possession of the United States; or (c)
 from any place in any State, Territory, or possession of the United States, or in the
 District of Columbia, to any place in any foreign country or to any vessel; or (d)
 within any State when the effects of such use extend beyond the borders of said
 State, or when interference is caused by such use or operation with the
 transmission of such energy, communications, or signals from within said State to
 any place beyond its borders, or from any place beyond its borders to any place
 within said State, or with the transmission or reception of such energy,
 communications, or signals from and/or to places beyond the borders of said State;
 or (e) upon any vessel or aircraft of the United States (except as provided in section
 303(t) of this title); or (f) upon any other mobile stations within the jurisdiction of
 the United States, except under and in accordance with this chapter and with a
 license in that behalf granted under the provisions of this chapter.

 47 U.S.C. § 303

 Except as otherwise provided in this chapter, the Commission from time to time, as
 public convenience, interest, or necessity requires, shall--

 (a) Classify radio stations;

 (b) Prescribe the nature of the service to be rendered by each class of licensed
 stations and each station within any class;

 (c) Assign bands of frequencies to the various classes of stations, and assign
 frequencies for each individual station and determine the power which each station
 shall use and the time during which it may operate;

 (d) Determine the location of classes of stations or individual stations;




                                           8
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 (e) Regulate the kind of apparatus to be used with respect to its external effects and
 the purity and sharpness of the emissions from each station and from the apparatus
 therein;

 (f) Make such regulations not inconsistent with law as it may deem necessary to
 prevent interference between stations and to carry out the provisions of this
 chapter: Provided, however, That changes in the frequencies, authorized power, or
 in the times of operation of any station, shall not be made without the consent of
 the station licensee unless the Commission shall determine that such changes will
 promote public convenience or interest or will serve public necessity, or the
 provisions of this chapter will be more fully complied with;

 (g) Study new uses for radio, provide for experimental uses of frequencies, and
 generally encourage the larger and more effective use of radio in the public
 interest;

 (h) Have authority to establish areas or zones to be served by any station;

 (i) Have authority to make special regulations applicable to radio stations engaged
 in chain broadcasting;

 (j) Have authority to make general rules and regulations requiring stations to keep
 such records of programs, transmissions of energy, communications, or signals as
 it may deem desirable;

 (k) Have authority to exclude from the requirements of any regulations in whole or
 in part any radio station upon railroad rolling stock, or to modify such regulations
 in its discretion;

 (l)(1) Have authority to prescribe the qualifications of station operators, to classify
 them according to the duties to be performed, to fix the forms of such licenses, and
 to issue them to persons who are found to be qualified by the Commission and who
 otherwise are legally eligible for employment in the United States, except that such
 requirement relating to eligibility for employment in the United States shall not
 apply in the case of licenses issued by the Commission to (A) persons holding
 United States pilot certificates; or (B) persons holding foreign aircraft pilot
 certificates which are valid in the United States, if the foreign government involved
 has entered into a reciprocal agreement under which such foreign government does
 not impose any similar requirement relating to eligibility for employment upon
 citizens of the United States;

                                           9
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 (2) Notwithstanding paragraph (1) of this subsection, an individual to whom a
 radio station is licensed under the provisions of this chapter may be issued an
 operator's license to operate that station.

 (3) In addition to amateur operator licenses which the Commission may issue to
 aliens pursuant to paragraph (2) of this subsection, and notwithstanding section
 301 of this title and paragraph (1) of this subsection, the Commission may issue
 authorizations, under such conditions and terms as it may prescribe, to permit an
 alien licensed by his government as an amateur radio operator to operate his
 amateur radio station licensed by his government in the United States, its
 possessions, and the Commonwealth of Puerto Rico provided there is in effect a
 multilateral or bilateral agreement, to which the United States and the alien's
 government are parties, for such operation on a reciprocal basis by United States
 amateur radio operators. Other provisions of this chapter and of subchapter II of
 chapter 5, and chapter 7, of Title 5 shall not be applicable to any request or
 application for or modification, suspension, or cancellation of any such
 authorization.

 (m)(1) Have authority to suspend the license of any operator upon proof sufficient
 to satisfy the Commission that the licensee--

 (A) has violated, or caused, aided, or abetted the violation of, any provision of any
 Act, treaty, or convention binding on the United States, which the Commission is
 authorized to administer, or any regulation made by the Commission under any
 such Act, treaty, or convention; or

 (B) has failed to carry out a lawful order of the master or person lawfully in charge
 of the ship or aircraft on which he is employed; or

 (C) has willfully damaged or permitted radio apparatus or installations to be
 damaged; or

 (D) has transmitted superfluous radio communications or signals or
 communications containing profane or obscene words, language, or meaning, or
 has knowingly transmitted--

 (1) false or deceptive signals or communications, or




                                          10
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 (2) a call signal or letter which has not been assigned by proper authority to the
 station he is operating; or

 (E) has willfully or maliciously interfered with any other radio communications or
 signals; or

 (F) has obtained or attempted to obtain, or has assisted another to obtain or attempt
 to obtain, an operator's license by fraudulent means.

 (2) No order of suspension of any operator's license shall take effect until fifteen
 days' notice in writing thereof, stating the cause for the proposed suspension, has
 been given to the operator licensee who may make written application to the
 Commission at any time within said fifteen days for a hearing upon such order.
 The notice to the operator licensee shall not be effective until actually received by
 him, and from that time he shall have fifteen days in which to mail the said
 application. In the event that physical conditions prevent mailing of the application
 at the expiration of the fifteen-day period, the application shall then be mailed as
 soon as possible thereafter, accompanied by a satisfactory explanation of the delay.
 Upon receipt by the Commission of such application for hearing, said order of
 suspension shall be held in abeyance until the conclusion of the hearing which
 shall be conducted under such rules as the Commission may prescribe. Upon the
 conclusion of said hearing the Commission may affirm, modify, or revoke said
 order of suspension.

 (n) Have authority to inspect all radio installations associated with stations required
 to be licensed by any Act, or which the Commission by rule has authorized to
 operate without a license under section 307(e)(1) of this title, or which are subject
 to the provisions of any Act, treaty, or convention binding on the United States, to
 ascertain whether in construction, installation, and operation they conform to the
 requirements of the rules and regulations of the Commission, the provisions of any
 Act, the terms of any treaty or convention binding on the United States, and the
 conditions of the license or other instrument of authorization under which they are
 constructed, installed, or operated.

 (o) Have authority to designate call letters of all stations;

 (p) Have authority to cause to be published such call letters and such other
 announcements and data as in the judgment of the Commission may be required
 for the efficient operation of radio stations subject to the jurisdiction of the United
 States and for the proper enforcement of this chapter;

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 (q) Have authority to require the painting and/or illumination of radio towers if and
 when in its judgment such towers constitute, or there is a reasonable possibility
 that they may constitute, a menace to air navigation. The permittee or licensee, and
 the tower owner in any case in which the owner is not the permittee or licensee,
 shall maintain the painting and/or illumination of the tower as prescribed by the
 Commission pursuant to this section. In the event that the tower ceases to be
 licensed by the Commission for the transmission of radio energy, the owner of the
 tower shall maintain the prescribed painting and/or illumination of such tower until
 it is dismantled, and the Commission may require the owner to dismantle and
 remove the tower when the Administrator of the Federal Aviation Agency
 determines that there is a reasonable possibility that it may constitute a menace to
 air navigation.

 (r) Make such rules and regulations and prescribe such restrictions and conditions,
 not inconsistent with law, as may be necessary to carry out the provisions of this
 chapter, or any international radio or wire communications treaty or convention, or
 regulations annexed thereto, including any treaty or convention insofar as it relates
 to the use of radio, to which the United States is or may hereafter become a party.

 (s) Have authority to require that apparatus designed to receive television pictures
 broadcast simultaneously with sound be capable of adequately receiving all
 frequencies allocated by the Commission to television broadcasting when such
 apparatus is shipped in interstate commerce, or is imported from any foreign
 country into the United States, for sale or resale to the public.

 (t) Notwithstanding the provisions of section 301(e) of this title, have authority, in
 any case in which an aircraft registered in the United States is operated (pursuant
 to a lease, charter, or similar arrangement) by an aircraft operator who is subject to
 regulation by the government of a foreign nation, to enter into an agreement with
 such government under which the Commission shall recognize and accept any
 radio station licenses and radio operator licenses issued by such government with
 respect to such aircraft.

 (u) Require that, if technically feasible--

 (1) apparatus designed to receive or play back video programming transmitted
 simultaneously with sound, if such apparatus is manufactured in the United States
 or imported for use in the United States and uses a picture screen of any size--



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 (A) be equipped with built-in closed caption decoder circuitry or capability
 designed to display closed-captioned video programming;

 (B) have the capability to decode and make available the transmission and delivery
 of video description services as required by regulations reinstated and modified
 pursuant to section 613(f) of this title; and

 (C) have the capability to decode and make available emergency information (as
 that term is defined in section 79.2 of the Commission's regulations (47 CFR 79.2))
 in a manner that is accessible to individuals who are blind or visually impaired;
 and

 (2) notwithstanding paragraph (1) of this subsection--

 (A) apparatus described in such paragraph that use a picture screen that is less than
 13 inches in size meet the requirements of subparagraph (A), (B), or (C) of such
 paragraph only if the requirements of such subparagraphs are achievable (as
 defined in section 617 of this title);

 (B) any apparatus or class of apparatus that are display-only video monitors with
 no playback capability are exempt from the requirements of such paragraph; and

 (C) the Commission shall have the authority, on its own motion or in response to a
 petition by a manufacturer, to waive the requirements of this subsection for any
 apparatus or class of apparatus--

 (i) primarily designed for activities other than receiving or playing back video
 programming transmitted simultaneously with sound; or

 (ii) for equipment designed for multiple purposes, capable of receiving or playing
 video programming transmitted simultaneously with sound but whose essential
 utility is derived from other purposes.

 (v) Have exclusive jurisdiction to regulate the provision of direct-to-home satellite
 services. As used in this subsection, the term “direct-to-home satellite services”
 means the distribution or broadcasting of programming or services by satellite
 directly to the subscriber's premises without the use of ground receiving or
 distribution equipment, except at the subscriber's premises or in the uplink process
 to the satellite.



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 (w) Omitted.

 (x) Require, in the case of an apparatus designed to receive television signals that
 are shipped in interstate commerce or manufactured in the United States and that
 have a picture screen 13 inches or greater in size (measured diagonally), that such
 apparatus be equipped with a feature designed to enable viewers to block display
 of all programs with a common rating, except as otherwise permitted by
 regulations pursuant to section 330(c)(4) of this title.

 (y) Have authority to allocate electromagnetic spectrum so as to provide flexibility
 of use, if--

 (1) such use is consistent with international agreements to which the United States
 is a party; and

 (2) the Commission finds, after notice and an opportunity for public comment,
 that--

 (A) such an allocation would be in the public interest;

 (B) such use would not deter investment in communications services and systems,
 or technology development; and

 (C) such use would not result in harmful interference among users.

 (z) Require that--

 (1) if achievable (as defined in section 617 of this title), apparatus designed to
 record video programming transmitted simultaneously with sound, if such
 apparatus is manufactured in the United States or imported for use in the United
 States, enable the rendering or the pass through of closed captions, video
 description signals, and emergency information (as that term is defined in section
 79.2 of title 47, Code of Federal Regulations) such that viewers are able to activate
 and de-activate the closed captions and video description as the video
 programming is played back on a picture screen of any size; and

 (2) interconnection mechanisms and standards for digital video source devices are
 available to carry from the source device to the consumer equipment the
 information necessary to permit or render the display of closed captions and to
 make encoded video description and emergency information audible.

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 (aa) Require--

 (1) if achievable (as defined in section 617 of this title) that digital apparatus
 designed to receive or play back video programming transmitted in digital format
 simultaneously with sound, including apparatus designed to receive or display
 video programming transmitted in digital format using Internet protocol, be
 designed, developed, and fabricated so that control of appropriate built-in
 apparatus functions are accessible to and usable by individuals who are blind or
 visually impaired, except that the Commission may not specify the technical
 standards, protocols, procedures, and other technical requirements for meeting this
 requirement;

 (2) that if on-screen text menus or other visual indicators built in to the digital
 apparatus are used to access the functions of the apparatus described in paragraph
 (1), such functions shall be accompanied by audio output that is either integrated or
 peripheral to the apparatus, so that such menus or indicators are accessible to and
 usable by individuals who are blind or visually impaired in real-time;

 (3) that for such apparatus equipped with the functions described in paragraphs (1)
 and (2) built in access to those closed captioning and video description features
 through a mechanism that is reasonably comparable to a button, key, or icon
 designated for activating the closed captioning or accessibility features; and

 (4) that in applying this subsection the term “apparatus” does not include a
 navigation device, as such term is defined in section 76.1200 of the Commission's
 rules (47 CFR 76.1200).

 (bb) Require--

 (1) if achievable (as defined in section 617 of this title), that the on-screen text
 menus and guides provided by navigation devices (as such term is defined in
 section 76.1200 of title 47, Code of Federal Regulations) for the display or
 selection of multichannel video programming are audibly accessible in real- time
 upon request by individuals who are blind or visually impaired, except that the
 Commission may not specify the technical standards, protocols, procedures, and
 other technical requirements for meeting this requirement;




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 (2) for navigation devices with built-in closed captioning capability, that access to
 that capability through a mechanism is reasonably comparable to a button, key, or
 icon designated for activating the closed captioning, or accessibility features; and

 (3) that, with respect to navigation device features and functions--

 (A) delivered in software, the requirements set forth in this subsection shall apply
 to the manufacturer of such software; and

 (B) delivered in hardware, the requirements set forth in this subsection shall apply
 to the manufacturer of such hardware.

 47 U.S.C. § 304

 No station license shall be granted by the Commission until the applicant therefor
 shall have waived any claim to the use of any particular frequency or of the
 electromagnetic spectrum as against the regulatory power of the United States
 because of the previous use of the same, whether by license or otherwise.

 47 U.S.C. § 309

 (a) Considerations in granting application

 Subject to the provisions of this section, the Commission shall determine, in the
 case of each application filed with it to which section 308 of this title applies,
 whether the public interest, convenience, and necessity will be served by the
 granting of such application, and, if the Commission, upon examination of such
 application and upon consideration of such other matters as the Commission may
 officially notice, shall find that public interest, convenience, and necessity would
 be served by the granting thereof, it shall grant such application.

 ***

 (j) Use of competitive bidding

 ***

 (3) Design of systems of competitive bidding




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 For each class of licenses or permits that the Commission grants through the use of
 a competitive bidding system, the Commission shall, by regulation, establish a
 competitive bidding methodology. The Commission shall seek to design and test
 multiple alternative methodologies under appropriate circumstances. The
 Commission shall, directly or by contract, provide for the design and conduct (for
 purposes of testing) of competitive bidding using a contingent combinatorial
 bidding system that permits prospective bidders to bid on combinations or groups
 of licenses in a single bid and to enter multiple alternative bids within a single
 bidding round. In identifying classes of licenses and permits to be issued by
 competitive bidding, in specifying eligibility and other characteristics of such
 licenses and permits, and in designing the methodologies for use under this
 subsection, the Commission shall include safeguards to protect the public interest
 in the use of the spectrum and shall seek to promote the purposes specified in
 section 151 of this title and the following objectives:

 (A) the development and rapid deployment of new technologies, products, and
 services for the benefit of the public, including those residing in rural areas,
 without administrative or judicial delays;

 (B) promoting economic opportunity and competition and ensuring that new and
 innovative technologies are readily accessible to the American people by avoiding
 excessive concentration of licenses and by disseminating licenses among a wide
 variety of applicants, including small businesses, rural telephone companies, and
 businesses owned by members of minority groups and women;

 (C) recovery for the public of a portion of the value of the public spectrum
 resource made available for commercial use and avoidance of unjust enrichment
 through the methods employed to award uses of that resource;

 (D) efficient and intensive use of the electromagnetic spectrum;

 (E) ensure that, in the scheduling of any competitive bidding under this subsection,
 an adequate period is allowed; and

 (i) before issuance of bidding rules, to permit notice and comment on proposed
 auction procedures; and

 (ii) after issuance of bidding rules, to ensure that interested parties have a sufficient
 time to develop business plans, assess market conditions, and evaluate the
 availability of equipment for the relevant services.

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 (F) for any auction of eligible frequencies described in section 923(g)(2) of this
 title, the recovery of 110 percent of estimated relocation costs as provided to the
 Commission pursuant to section 923(g)(4) of this title.

 ***

 47 U.S.C. § 316

 (a)(1) Any station license or construction permit may be modified by the
 Commission either for a limited time or for the duration of the term thereof, if in
 the judgment of the Commission such action will promote the public interest,
 convenience, and necessity, or the provisions of this chapter or of any treaty
 ratified by the United States will be more fully complied with. No such order of
 modification shall become final until the holder of the license or permit shall have
 been notified in writing of the proposed action and the grounds and reasons
 therefor, and shall be given reasonable opportunity, of at least thirty days, to
 protest such proposed order of modification; except that, where safety of life or
 property is involved, the Commission may by order provide, for a shorter period of
 notice.

 ***

 47 U.S.C. § 332

 ***

 (c) Regulatory treatment of mobile services

 (1) Common carrier treatment of commercial mobile services

 (A) A person engaged in the provision of a service that is a commercial mobile
 service shall, insofar as such person is so engaged, be treated as a common carrier
 for purposes of this chapter, except for such provisions of subchapter II of this
 chapter as the Commission may specify by regulation as inapplicable to that
 service or person. In prescribing or amending any such regulation, the Commission
 may not specify any provision of section 201, 202, or 208 of this title, and may
 specify any other provision only if the Commission determines that--




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 (i) enforcement of such provision is not necessary in order to ensure that the
 charges, practices, classifications, or regulations for or in connection with that
 service are just and reasonable and are not unjustly or unreasonably discriminatory;

 (ii) enforcement of such provision is not necessary for the protection of consumers;
 and

 (iii) specifying such provision is consistent with the public interest.

 ***

 (2) Non-common carrier treatment of private mobile services

 A person engaged in the provision of a service that is a private mobile service shall
 not, insofar as such person is so engaged, be treated as a common carrier for any
 purpose under this chapter. A common carrier (other than a person that was treated
 as a provider of a private land mobile service prior to August 10, 1993) shall not
 provide any dispatch service on any frequency allocated for common carrier
 service, except to the extent such dispatch service is provided on stations licensed
 in the domestic public land mobile radio service before January 1, 1982. The
 Commission may by regulation terminate, in whole or in part, the prohibition
 contained in the preceding sentence if the Commission determines that such
 termination will serve the public interest.

 ***

 (d) Definitions

 For purposes of this section--

 (1) the term “commercial mobile service” means any mobile service (as defined in
 section 153 of this title) that is provided for profit and makes interconnected
 service available (A) to the public or (B) to such classes of eligible users as to be
 effectively available to a substantial portion of the public, as specified by
 regulation by the Commission;

 (2) the term “interconnected service” means service that is interconnected with the
 public switched network (as such terms are defined by regulation by the
 Commission) or service for which a request for interconnection is pending
 pursuant to subsection (c)(1)(B) of this section; and

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 (3) the term “private mobile service” means any mobile service (as defined in
 section 153 of this title) that is not a commercial mobile service or the functional
 equivalent of a commercial mobile service, as specified by regulation by the
 Commission.

 47 U.S.C. § 402

 (a) Procedure

 Any proceeding to enjoin, set aside, annul, or suspend any order of the
 Commission under this chapter (except those appealable under subsection (b) of
 this section) shall be brought as provided by and in the manner prescribed in
 chapter 158 of Title 28.

 (b) Right to appeal

 Appeals may be taken from decisions and orders of the Commission to the United
 States Court of Appeals for the District of Columbia in any of the following cases:

 (1) By any applicant for a construction permit or station license, whose application
 is denied by the Commission.

 (2) By any applicant for the renewal or modification of any such instrument of
 authorization whose application is denied by the Commission.

 (3) By any party to an application for authority to transfer, assign, or dispose of
 any such instrument of authorization, or any rights thereunder, whose application is
 denied by the Commission.

 (4) By any applicant for the permit required by section 325 of this title whose
 application has been denied by the Commission, or by any permittee under said
 section whose permit has been revoked by the Commission.

 (5) By the holder of any construction permit or station license which has been
 modified or revoked by the Commission.

 (6) By any other person who is aggrieved or whose interests are adversely affected
 by any order of the Commission granting or denying any application described in
 paragraphs (1), (2), (3), (4), and (9) of this subsection.

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 (7) By any person upon whom an order to cease and desist has been served under
 section 312 of this title.

 (8) By any radio operator whose license has been suspended by the Commission.

 (9) By any applicant for authority to provide interLATA services under section 271
 of this title whose application is denied by the Commission.

 (10) By any person who is aggrieved or whose interests are adversely affected by a
 determination made by the Commission under section 618(a)(3) of this title.

 ***

 47 U.S.C. § 536

 (a) Regulations

 Within one year after October 5, 1992, the Commission shall establish regulations
 governing program carriage agreements and related practices between cable
 operators or other multichannel video programming distributors and video
 programming vendors. Such regulations shall--

 (1) include provisions designed to prevent a cable operator or other multichannel
 video programming distributor from requiring a financial interest in a program
 service as a condition for carriage on one or more of such operator's systems;

 (2) include provisions designed to prohibit a cable operator or other multichannel
 video programming distributor from coercing a video programming vendor to
 provide, and from retaliating against such a vendor for failing to provide, exclusive
 rights against other multichannel video programming distributors as a condition of
 carriage on a system;

 (3) contain provisions designed to prevent a multichannel video programming
 distributor from engaging in conduct the effect of which is to unreasonably restrain
 the ability of an unaffiliated video programming vendor to compete fairly by
 discriminating in video programming distribution on the basis of affiliation or
 nonaffiliation of vendors in the selection, terms, or conditions for carriage of video
 programming provided by such vendors;



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 (4) provide for expedited review of any complaints made by a video programming
 vendor pursuant to this section;

 (5) provide for appropriate penalties and remedies for violations of this subsection,
 including carriage; and

 (6) provide penalties to be assessed against any person filing a frivolous complaint
 pursuant to this section.

 (b) “Video programming vendor” defined

 As used in this section, the term “video programming vendor” means a person
 engaged in the production, creation, or wholesale distribution of video
 programming for sale.

 47 U.S.C. § 548

 (a) Purpose

 The purpose of this section is to promote the public interest, convenience, and
 necessity by increasing competition and diversity in the multichannel video
 programming market, to increase the availability of satellite cable programming
 and satellite broadcast programming to persons in rural and other areas not
 currently able to receive such programming, and to spur the development of
 communications technologies.

 (b) Prohibition

 It shall be unlawful for a cable operator, a satellite cable programming vendor in
 which a cable operator has an attributable interest, or a satellite broadcast
 programming vendor to engage in unfair methods of competition or unfair or
 deceptive acts or practices, the purpose or effect of which is to hinder significantly
 or to prevent any multichannel video programming distributor from providing
 satellite cable programming or satellite broadcast programming to subscribers or
 consumers.

 ***




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 47 U.S.C. § 1302

 (a) In general

 The Commission and each State commission with regulatory jurisdiction over
 telecommunications services shall encourage the deployment on a reasonable and
 timely basis of advanced telecommunications capability to all Americans
 (including, in particular, elementary and secondary schools and classrooms) by
 utilizing, in a manner consistent with the public interest, convenience, and
 necessity, price cap regulation, regulatory forbearance, measures that promote
 competition in the local telecommunications market, or other regulating methods
 that remove barriers to infrastructure investment.

 (b) Inquiry

 The Commission shall, within 30 months after February 8, 1996, and annually
 thereafter, initiate a notice of inquiry concerning the availability of advanced
 telecommunications capability to all Americans (including, in particular,
 elementary and secondary schools and classrooms) and shall complete the inquiry
 within 180 days after its initiation. In the inquiry, the Commission shall determine
 whether advanced telecommunications capability is being deployed to all
 Americans in a reasonable and timely fashion. If the Commission's determination
 is negative, it shall take immediate action to accelerate deployment of such
 capability by removing barriers to infrastructure investment and by promoting
 competition in the telecommunications market.

 (c) Demographic information for unserved areas

 As part of the inquiry required by subsection (b), the Commission shall compile a
 list of geographical areas that are not served by any provider of advanced
 telecommunications capability (as defined by subsection (d)(1) of this section) and
 to the extent that data from the Census Bureau is available, determine, for each
 such unserved area--

 (1) the population;

 (2) the population density; and

 (3) the average per capita income.



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 (d) Definitions

 For purposes of this subsection:

 (1) Advanced telecommunications capability

 The term “advanced telecommunications capability” is defined, without regard to
 any transmission media or technology, as high-speed, switched, broadband
 telecommunications capability that enables users to originate and receive high-
 quality voice, data, graphics, and video telecommunications using any technology.

 (2) Elementary and secondary schools

 The term “elementary and secondary schools” means elementary and secondary
 schools, as defined in section 7801 of Title 20.

 47 C.F.R. § 8.1

 The purpose of this part is to preserve the Internet as an open platform enabling
 consumer choice, freedom of expression, end-user control, competition, and the
 freedom to innovate without permission.

 47 C.F.R. § 8.3

 A person engaged in the provision of broadband Internet access service shall
 publicly disclose accurate information regarding the network management
 practices, performance, and commercial terms of its broadband Internet access
 services sufficient for consumers to make informed choices regarding use of such
 services and for content, application, service, and device providers to develop,
 market, and maintain Internet offerings.

 47 C.F.R. § 8.5

 (a) A person engaged in the provision of fixed broadband Internet access service,
 insofar as such person is so engaged, shall not block lawful content, applications,
 services, or non-harmful devices, subject to reasonable network management.

 (b) A person engaged in the provision of mobile broadband Internet access service,
 insofar as such person is so engaged, shall not block consumers from accessing
 lawful Web sites, subject to reasonable network management; nor shall such

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 person block applications that compete with the provider's voice or video
 telephony services, subject to reasonable network management.

 47 C.F.R. § 8.7

 A person engaged in the provision of fixed broadband Internet access service,
 insofar as such person is so engaged, shall not unreasonably discriminate in
 transmitting lawful network traffic over a consumer's broadband Internet access
 service. Reasonable network management shall not constitute unreasonable
 discrimination.

 47 C.F.R. § 8.9

 (a) Nothing in this part supersedes any obligation or authorization a provider of
 broadband Internet access service may have to address the needs of emergency
 communications or law enforcement, public safety, or national security authorities,
 consistent with or as permitted by applicable law, or limits the provider's ability to
 do so.

 (b) Nothing in this part prohibits reasonable efforts by a provider of broadband
 Internet access service to address copyright infringement or other unlawful
 activity.

 47 C.F.R. § 8.11

 (a) Broadband Internet access service. A mass-market retail service by wire or
 radio that provides the capability to transmit data to and receive data from all or
 substantially all Internet endpoints, including any capabilities that are incidental to
 and enable the operation of the communications service, but excluding dial-up
 Internet access service. This term also encompasses any service that the
 Commission finds to be providing a functional equivalent of the service described
 in the previous sentence, or that is used to evade the protections set forth in this
 part.

 (b) Fixed broadband Internet access service. A broadband Internet access service
 that serves end users primarily at fixed endpoints using stationary equipment.
 Fixed broadband Internet access service includes fixed wireless services (including
 fixed unlicensed wireless services), and fixed satellite services.




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 (c) Mobile broadband Internet access service. A broadband Internet access service
 that serves end users primarily using mobile stations.

 (d) Reasonable network management. A network management practice is
 reasonable if it is appropriate and tailored to achieving a legitimate network
 management purpose, taking into account the particular network architecture and
 technology of the broadband Internet access service.




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                           CERTIFICATE OF SERVICE
       I, Helgi C. Walker, hereby certify that on July 2, 2012, I electronically filed

 the foregoing document with the Clerk of the Court for the United States Court of

 Appeals for the D.C. Circuit by using the CM/ECF system. I further certify that

 six copies of the foregoing will be filed with the Clerk of the Court for the United

 States Court of Appeals for the D.C. Circuit within two business days. Participants

 in the case who are registered CM/ECF users will be served by the CM/ECF

 system.

       Some of the participants in the case, denoted with asterisks below, are not

 CM/ECF users. I certify further that I have directed that copies of the foregoing

 document be mailed by First-Class Mail to those persons, unless another attorney

 representing the same party is receiving electronic service.


 Austin C. Schlick                         Nancy C. Garrison
 Richard K. Welch                          R. Craig Lawrence
 Joel Marcus                               Catherine G. O’Sullivan
 Jacob M. Lewis                            Robert J. Wiggers
 Peter Karanjia                            U.S. Department of Justice
 Federal Communications Commission         (DOJ) Antitrust Division, Appellate
 Office of the General Counsel             Section
 445 12th Street, S.W.                     Room 3224
 Washington, DC 20554                      950 Pennsylvania Avenue, NW
                                           Washington, DC 20530-0001
 Counsel for the Federal Communications
 Commission                             Counsel for United States of America
USCA Case #11-1355     Document #1381604            Filed: 07/02/2012   Page 115 of 116


 James B. Ramsay                             Genevieve Morelli
 National Association of Regulatory          Independent Telephone &
   Utility Commissioners                       Telecommunications Alliance
 1101 Vermont Avenue, N.W.                   1101 Vermont Avenue, NW
 Suite 200                                   Suite 501
 Washington, DC 20005                        Washington, DC 20005

 Counsel for National Association of         Counsel for Independent Telephone &
 Regulatory Utility Commissioners            Telecommunications Alliance

 Harold J. Feld                              Henry Goldberg
 Public Knowledge                            Goldberg, Godles, Wiener & Wright
 1818 N Street, N.W.                         1229 19th Street, NW
 Suite 410                                   Washington, DC 20036-2413
 Washington, DC 20036
                                             Counsel for Open Internet Coalition
 Counsel for Public Knowledge

 David Bergmann                              Michael Field Altschul
 Assistant Consumers’ Counsel                CTIA-The Wireless Association®
 Chair, NASUCA Telecommunications            Suite 600
 Committee                                   1400 16th Street, NW
 Office of the Ohio Consumers’               Suite 600
 Counsel                                     Washington, DC 20036-0000
 10 West Broad Street, Suite 800
 Columbus, OH 43215                          Council for CTIA-The Wireless
                                             Association®
 Counsel for National Association of State
 Utility Consumer Advocates
                                             Earle Duncan Getchell Jr.
 Jeffrey J. Binder                           Office of the Attorney General,
 Law Office of Jeffrey Binder                Commonwealth of Virginia
 2510 Virginia Avenue, NW                    900 East Main Street
 Suite 1107                                  Richmond, VA 23219
 Washington, DC 20037
                                             Counsel for the Commonwealth of
 Counsel for Vonage Holdings                 Virginia
 Corporation
USCA Case #11-1355    Document #1381604      Filed: 07/02/2012   Page 116 of 116


 Brendan Daniel Kasper                Jonathan E. Nuechterlein
 Kurt Matthew Rogers*                 Elvis Stumbergs
 Vonage Holdings Corp.                Heather Marie Zachary
 23 Main Street                       Wilmer Cutler Pickering Hale and Dorr,
 Homdel, NJ 07333                     LLP
                                      1875 Pennsylvania Avenue, NW
 Counsel for Vonage Holdings          Washington, DC 20006-1420
 Corporation
                                      Council for CTIA-The Wireless
                                      Association®
 Matthew F. Wood
 Free Press
 1025 Connecticut Avenue, NW
 Suite 1110
 Washington, DC 20036

 Counsel for Free Press



                                        /s/ Helgi C. Walker
                                   _____________________________

				
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Description: Verizon has decided that since it is a corporation (person) it has the right to censor your content, any content, on its networks, calling censorship another form of free speech. According to Verizon ""[b]roadband networks are the modern-day microphone by which their owners engage in First Amendment speech," ..."Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others,"